Re Alimic
[2021] VSC 235
•5 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0076
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by MARIA ALIMIC |
---
JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 April 2021 |
DATE OF JUDGMENT: | 5 May 2021 |
CASE MAY BE CITED AS: | Re Alimic |
MEDIUM NEUTRAL CITATION: | [2021] VSC 235 |
---
CRIMINAL LAW – Bail – 54-year-old applicant with lengthy criminal history – Charge of conspiracy to defraud – Judge alone trial – Trial already commenced, and to recommence following hiatus on 31 May 2021 - Previous applications for bail before judge of County Court – No application made to trial judge – Whether this Court should exercise its discretion to entertain application – Application entertained – Compelling reason case – Applicant serving sentence – Non-parole period had been served but no determination by Adult Parole Board to grant parole – Combination of matters relied upon by applicant in proof of a compelling reason – Compelling reason not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Kenny with Ms L Thies | Stary Norton Halphen |
| For the Respondent | Mr T Gyorffy QC with Ms J Croxford | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on charges she faces of conspiracy to defraud, contravening a conduct condition of bail (two charges) and failing to comply with a direction to assist under s 465AAA of the Crimes Act 1958.
The charges of contravening a conduct condition of bail are laid under s 30A of the Bail Act 1977 (‘the Act’). Offences against the Act are Schedule 2 offences.[1] As a result, the applicant is in the situation of having to show that a compelling reason exists that justifies the grant of bail.[2]
[1] Schedule 2, item 30.
[2]The Act, ss 4AA(3) and 4C(1A).
A preliminary issue was raised by the respondent as to whether it would be appropriate in the circumstances for the Court to entertain this application for bail.
Procedural history
The offence of conspiracy to defraud is alleged to have been committed by the applicant between 1 July 2015 and 8 March 2016. The applicant was charged with this offence on 8 March 2016 and released on police bail.
On 6 October 2016, the applicant was charged with the other offences listed above. Bail was revoked in the Geelong Magistrates’ Court and the applicant was remanded in custody.
On 21 October 2016, bail was refused in the Melbourne Magistrates’ Court on the basis that the applicant posed an unacceptable risk of failing to answer bail or endangering the safety or welfare of any person.
Between January 2017 and March 2018, a number of applications for bail in the Magistrates’ Court were withdrawn by the applicant prior to hearing.
On 27 March 2018, the applicant was committed for trial in the County Court on the conspiracy charge. The other charges were transferred to the County Court as related summary offences.
On 20 December 2018, an application for bail was refused by Judge Lacava in the County Court.
On 7 March 2019, the applicant was sentenced in the Magistrates’ Court to imprisonment for eight months.
On 8 July 2019, the appellant appealed to the County Court against the above sentence. On appeal, the sentencing order was set aside and the applicant was sentenced to be imprisoned for six months. A declaration was made as to 123 days pre-sentence detention.
On 11 July 2019, the applicant was sentenced in the County Court on unrelated charges of obtaining a financial advantage by deception (two charges) and attempting to obtain a financial advantage by deception to four years and six months’ imprisonment with a non-parole period of three years. A declaration was made as to 875 days of pre-sentence detention.
On 16 February 2020, the applicant became eligible for parole. Material placed before the Court during the application indicated that the Adult Parole Board (‘APB’) has completed its assessment but made no determination concerning parole. It has considered two accommodation proposals advanced by the applicant to be unsuitable, and is awaiting an update on all court matters including the matter of bail at the end of May.
On 17 June 2020, an application for bail was refused by Judge Murphy in the County Court.
On 10 March 2021, an application for bail was refused by Judge Murphy in the County Court on the basis that no new facts and circumstances had been shown to have arisen since the previous refusal of bail.
On 18 March 2021, the applicant and her co-offender were arraigned before Judge Leighfield on the charge of conspiracy, and the trial commenced as a judge alone trial. The prosecution opened the case, following which, the trial was adjourned to 31 May 2021 for pre-trial submissions. This course was followed to preserve the right of the applicant to a judge-alone trial at a time when it was uncertain whether such trials would be permitted after 24 April 2021.
On 1 April 2021, the present application for bail was filed in this Court.
Summary of alleged offending
Conspiracy to defraud
The prosecution allege that between 1 July 2015 and 8 March 2016, the applicant and co-accused conspired to defraud 56 clients of two businesses – Loanmart and Zoran & Co.
After having worked as an administrative assistant at Loanmart alongside the co-accused since 2012, in August 2015 the applicant and a family friend, Nemanja Durovic, agreed to set up their own business operating out of Loanmart’s Deer Park office called Zoran & Co. By the end of August 2015, Loanmart ceased trading at the Deer Park office and Zoran & Co commenced operating from that location in early September 2015.
Zoran was advertised as a ‘one-stop shop’ for prospective home buyers, with Durovic running the property development side of the business and the applicant and co-accused handling finance brokering and conveyancing for clients. The applicant and co-accused charged clients approximately $2,000 to oversee the purchase process, including liaising with real estate agents, mortgage brokers and conveyancers on a client’s behalf. Clients were also required to give the applicant and co-accused all deposit money for the purchase of property in cash. The majority of their clients were South Sudanese and had limited English skills and were unfamiliar with how to purchase property in Victoria.
It is alleged that the pair:
· failed to complete necessary paperwork to effect the property transactions they were engaged to carry out;
· failed to record client transactions in any formal way;
· provided clients with handwritten receipts for deposit money from a generic receipt book that did not bear the Zoran & Co company letterhead;
· failed to segregate client funds from their own money;
· used client money for their own purposes, instead of the transactions they had agreed to carry out; and
· failed to refund client money when property transactions did not proceed.
In February 2016, clients began to report the matter to police and an investigation was commenced soon after.
The applicant was arrested at the Deer Park office on 8 March 2016. During her police interview, she denied all allegations put to her, stating that the Zoran & Co business was effectively run by Martha Kek and Rose Deng who commenced working with them in late 2015. The applicant stated that she took instructions from Martha Kek and Rose Deng and had not taken any client money for herself. She was charged and released on police bail.
The co-accused was arrested and interviewed on 11 March 2016. She was subsequently charged with conspiracy to defraud and released on bail.
Search warrants were executed at the Deer Park office and at the applicant and co-accused’s home where a number of contracts, documents and electronic devices were seized.
Post-offence conduct
It is alleged that during the police investigation, the applicant:
· removed files, documents and hard drives from the Zoran & Co offices with the co-accused in an attempt to conceal them;
· deliberately poured perfume over her laptop on the day of her arrest to damage it and prevent access to information stored on it;
· fabricated a written confession from Rose Deng; and
· contacted prosecution witnesses, Martha Kek and Rose Deng, in contravention of her conditions of bail.
Breach of bail and failure to comply with a lawful direction
On 6 October 2016, the applicant was charged with two charges of contravening a conduct condition of bail for contacting prosecution witnesses, Martha Kek and Rose Deng. She was also charged with failing to comply with a direction to assist issued under s 465AAA of the Crimes Act 1958 on the basis of having failed to provide information that would enable police to access a seized electronic device.
Personal background
The applicant is 54 years old. She left school after completing year 11 and thereafter held employment in various fields, including as a radiographer, mortgage broker, and real estate agent. She has two adult daughters, one of whom is the co-accused, from a previous long-term relationship in which she experienced family violence.
The applicant has a history of anxiety, depression, and has been diagnosed with an adjustment disorder. She has a previous history of problematic gambling and cannabis use and is currently being treated for systemic lupus.
Criminal history
The applicant has a criminal history in Hobart and Victoria commencing in 1991. She has accrued a number of relevant prior convictions for dishonesty offences, including defrauding the Commonwealth, obtaining a financial advantage by deception, obtaining property by deception, and attempting to obtain goods by false pretences. She has one prior conviction for failing to answer bail in 2004. As stated, the applicant is currently serving a term of imprisonment for two charges of obtaining a financial advantage by deception and attempting to obtain property by deception.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[3] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4C(2).
[4]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[5]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[6]
[5][2019] VSCA 214.
[6]Ibid [43].
The preliminary issue
As touched on earlier, the respondent raised as a preliminary issue the question whether it would be appropriate for the Court to entertain the application for bail.
The respondent filed written submissions which were very detailed and comprehensive in nature, and supported by reference to a number of reported decisions. Before me, Mr Gyorffy QC and Ms Croxford for the respondent made oral submissions speaking to the written submissions. In the circumstances, I will summarise the overall submissions only briefly, in the knowledge that I may not thereby do justice to the overall force of the submissions.
Important background to the respondent’s contention was the fact that the trial of the respondent before Judge Leighfield has already commenced, that her Honour is seized of this case and every aspect of its running, including the matter of bail, that no application for bail has been brought before her Honour, and that a further application for bail to her Honour or some other judge of the County Court would still be open to the respondent.
The respondent outlined the criminal jurisdiction of this Court, by reference to s 85(1) of the Constitution Act 1975 (Vic), s 5 of the Supreme Court Act 1986. The jurisdiction can be traced back, it was submitted, to s 11 of the Supreme Court Act 1852 which indicated the jurisdiction of the Court was comparable with the jurisdiction of the Queen’s Bench Division in the United Kingdom. It was submitted that the Court does not have authority to consider any matter which comes before it. Rather, the jurisdiction is confined by what would have been within the jurisdiction of the Queen’s Bench Division in the same situation.
The respondent emphasised the important role of the Court of Queen’s (or King’s) Bench in exercising a vigilant watch over the proceedings of inferior courts to ensure they do not exceed their jurisdiction.
The respondent submitted that the inherent jurisdiction of this Court in criminal cases is twofold:
a) The original jurisdiction to hear and determine indictable matters, including bail; and
b) Its supervisory jurisdiction in overseeing and monitoring the inferior courts to ensure they are exercising their powers lawfully.
It was submitted by the respondent that the prosecution of the respondent, by way of trial or bail, is not before this Court, and therefore the application does not fall within the Court’s original jurisdiction such as to entitle the Court to hear this application de novo. This is a case where the trial has commenced, and the bail discretion lies within the powers of the trial judge.
As for the supervisory jurisdiction of the Court, as a matter of practice, it was submitted this matter is in the charge of the trial judge, and the matter of bail is quintessentially a matter in her Honour’s domain. It is part and parcel of the trial process. In circumstances where the applicant has made no application for bail before her Honour, she has failed to establish a basis for the exercise of the Court’s inherent supervisory bail jurisdiction. It was submitted that the application has put the Court ‘in the invidious position of usurping the trial judge’s discretion without the trial judge being given the opportunity to exercise her discretion’. [7] The applicant has come to this Court before exhausting all her rights before the trial judge.
[7]Respondent’s outline [12.3].
It was submitted that the ordinary power of the Court is not to interfere in the trial judge’s discretion concerning bail during the running of a trial unless there is special reasons to do so. There would be no reason to do so.
Mr Kenny, for the applicant, submitted that not only does this Court have the jurisdiction to hear this application for bail, but that in the circumstances, it would be entirely appropriate for it to do so. There would be a special reason[8] to warrant that course, largely constituted by the fact that the trial which has already commenced and is shortly to recommence is, due to the emergency provisions introduced by the legislature in response to COVID-19, a judge-alone trial. In those circumstances, practical considerations would stand in the way of an application for bail being brought before the trial judge. Furthermore, even if such an application was to be heard by another judge of the County Court, s 18(3) would require the application to be heard by Judge Murphy, who has already refused bail twice, the second time of which was on the basis of no new facts and circumstances.
[8]Drawing on the term used by Mann CJ in R v Greenham [1940] CLR 236 to justify his Honour having entertained an application for bail in spite of the earlier decision of the Chairman of General Sessions who had carriage of the trial.
In developing his submission, Mr Kenny referred the Court to what was said as to this Court’s power to ‘hear and determine an application for bail in any case’ as explained by the Full Court of the Supreme Court in Director of Public Prosecutions v Kanfouche.[9]
[9][1992] 1 VR 141 at page 142 (Young CJ and Ashley J) (‘DPP v Kanfouche’)
Mr Kenny disputed that this application for bail is one in which the supervisory jurisdiction of the Court is enlivened. Rather, in circumstances where this is not a review of an earlier order of the County Court, or an appeal from such an order, it is a case in which the common law jurisdiction of the Court to consider the question of bail in any case is sought to be invoked.
Mr Kenny accepted that that common law jurisdiction does have as a component of it the fact that the Court has a discretion whether or not to exercise that discretion.
Mr Kenny submitted that for the Court to entertain the application in the circumstances would not be disrespectful to either the trial judge or the County Court. The applicant in seeking to bring the matter before Judge Murphy on two occasions had followed the proper processes of the County Court. As already noted, there are practical reasons why an application for bail before the trial judge is not open to the applicant. The application for bail to this Court is an appropriate one, and should be entertained.
The applicant’s submissions on bail
On the question of bail itself, Mr Kenny and Ms Thies relied on a combination of matters to establish the existence of a compelling reason that justifies the grant of bail. These matters were as set out in the written outline of submissions, and expanded on and in some cases modified in oral submissions. They were as follows:
a. The fact that the respondent has now spent over four-and-a-half years in custody, and the deterrent effect that has had upon her. The long period of time the applicant has spent in custody, it was submitted, has given her ‘pause’[10] and given her the opportunity to reflect upon the circumstances in her life that have led to her being in gaol, and to consider whether she wants those circumstances to recur.
[10]Application 66.
b. The availability of supervision and oversight upon her release by the APB. Mr Kenny submitted that whilst no determination as to parole has been made by the APB, it would not be speculative to conclude that there would be some conditions of parole and some level of oversight of where the applicant lives and what she does.
c. The availability of a stable address which will be approved for suitability in advance by the APB. The address relied upon was the apartment rented by Kerri King in her name on behalf of the applicant at 712/547 Flinders Lane, Melbourne, to be paid for by the mother of the applicant. It was made clear by Mr Kenny that what was relied upon was the availability of the apartment, rather than that of Ms King as someone who would supervise the applicant on bail. Mr Kenny acknowledged that the circumstances surrounding the address in question, including the fact that there is no indication that the APB, or indeed, the landlord, would actually permit the applicant to live there, left the assistance rendered to the application by the availability of the address ‘significantly qualified’.[11]
d. The fact that while in custody, the applicant has had inadequate access to a computer, so as to prevent her from adequately preparing her defence and instructing her legal representatives. Mr Kenny indicated that this issue has not been raised as a concern with the trial judge. The concern was not so much what had happened in the past, as the fact that the applicant would not have access to a computer in the final few weeks before the trial, and during the trial itself. Mr Kenny frankly conceded that he was not submitting that he and Ms Thies had been inadequately instructed, or that the applicant was incapable of providing instructions. He submitted, however, that the applicant has a right to view the documents in her trial, and to have them at her fingertips in order to be able to give instructions.
e. The existence of considerable delay between the alleged offending and the trial in this matter. Whilst it was acknowledged that the applicant contributed in part to delay in this matter due to changes in legal representation, leading to one trial date being put off, her most recent trial date was vacated due to COVID-19. Her trial will not conclude until more than five years after the alleged offending. In response to questions from the bench, Mr Kenny acknowledged that the period of delay required to be considered pursuant to s 3AAA(1)(k) of the Act is not the five years referred to in the written submissions, but rather, the weeks which would elapse between now and the conclusion of the trial. Furthermore, he made it clear that this is not a case in which any period of remand might exceed the sentence passed in the event of a conviction. Indeed, as at the present time, the applicant has spent no time at all in pre-sentence detention.
[11]Ibid 89.
Mr Kenny acknowledged that ‘on the face of it’, as he put it, the prosecution case is a strong one. There is a real issue, however, as to whether or not there was an agreement between the applicant and her co-offender, meaning that there is a ‘triable case’.[12]
[12]Ibid 64.
In respect of the nature and seriousness of the alleged offending, Mr Kenny accepted that it was serious, involving what is alleged to be a ‘calculated and involved conspiracy with a very large number of overt acts over a fairly long period of time’.[13]
[13]Ibid 65.
Relating the acknowledged seriousness of the offending, however, to the question of the risk actually posed by the applicant, Mr Kenny submitted that the offending was not spontaneous or something that happened unexpectedly because of a mental health issue or disordered lifestyle, so should not be viewed as the type of offending likely to ‘spontaneously reoccur’.[14]
[14]Ibid 65.
Mr Kenny accepted that the prior history of the applicant ‘does not assist her in this application for bail’.[15] She is currently serving a term of imprisonment for offences of dishonesty which post-date the offending for which she is soon to stand trial. Furthermore, this is not the first time the applicant has been in custody for a period of years for matters of dishonesty.
[15]Ibid 66.
On the question of the applicant’s bail history, Mr Kenny acknowledged that there are breaches alleged in respect of bail granted on the current charges. These involve contact with witnesses, which would never be a trivial matter. No menacing conduct is alleged, however. Mr Kenny accepted that the breaches of bail would not assist the applicant in this application. Nor would the misconduct alleged in custody[16] assist her cause.
[16]See statement of Sergeant Marshall dated 28 April 2021 and attachments.
On the question of parole, Mr Kenny made mention of the fact that the applicant has been eligible for parole since 16 February 2020. He submitted that it appears that the APB is waiting to see what will happen with this bail application, and whether the applicant is found guilty at her trial. As he put it:
It would plainly be unjust to have a situation where a person can’t be released because there are two competing orders each of which is waiting for the other to be reconciled.
So, it would be plainly unjust I submit, for your Honour to say well I shouldn’t exercise my discretion to grant bail simply because she is serving a sentence but eligible for parole in another case.[17]
[17]Application 68.
Turning to the matter of risk, Mr Kenny submitted that the risk posed by the applicant would be tempered by the fact that her trial is listed to recommence within a month and in the lead-up to that time, she will be in very regular consultation with her legal advisors to provide instructions. She would then attend court on a daily basis, which would serve as an additional reminder to comply with her bail undertaking. She has strong ties to the jurisdiction and strong reasons to remain here, offence free. The availability of a place to live and supervision by the APB would also be matters which would assist her in complying with bail. Mr Kenny outlined some other conditions of bail which could be imposed to ensure the risk posed by the applicant would not be unacceptable.
The respondent’s submissions on bail
The respondent relied upon the written submissions dated 16 June 2020 and filed in connection with the first application before Judge Murphy in resisting the application for bail. The written submissions were supplemented by the oral submission of Ms Croxford.
The respondent submitted that the alleged offending is serious, involving offending over a substantial period of time and involving a great deal of money, and substantial enrichment to the applicant and her family. If found guilty, the applicant would fall to be sentenced as a continuing criminal enterprise offender, with the result that the maximum penalty would increase from 15 to 25 years.[18]
[18]Sentencing Act 1991, s 6I.
It was submitted that the prosecution case can be characterised as overwhelming because of the combination of evidence outlined in the written submissions.
On the matter of delay, it was submitted that the chronology filed demonstrates that most of the delay has been caused by the applicant’s conduct. Indeed, in circumstances where the trial has already commenced, there is no delay in prospect.
The respondent submitted that in circumstances where the applicant is undergoing sentence, and whether or not she will be released on parole is an administrative decision in the discretion of the APB, about which there should be no speculation embarked upon, this application for bail is futile. In any event, the indications are that parole will not be considered until such time as the trial of these matters is concluded.
Turning to the criminal history of the applicant, the respondent noted that she has a history of dishonesty extending back over 29 years, involving numerous terms of imprisonment. Despite those dispositions, the indications are that the applicant’s misconduct has been escalating. The Court should have serious doubts that if granted bail, the applicant would refrain from offending. This is especially so in light of the applicant’s poor compliance with bail in the past. As to any prospect that the applicant would be released on parole, and conditions would serve to reduce her risk of re-offending and complying with bail conditions, it would be entirely speculative what conditions may be deemed fit by the APB.
Ms Croxford submitted that the address proposed for the applicant is inappropriate, having been deemed so by the APB. The landlord is uncomfortable with the applicant residing there. The rent has been paid thus far by the elderly mother of the applicant. There is no evidence to indicate that she will be in a financial position to continue to pay the rent.
As to the matter of the applicant’s limited access to a computer, Ms Croxford took the Court to some of the contents of the affidavits of Brendan Money, previously from Corrections. As to why the computer previously provided to the applicant as indicated by Mr Money had later been removed from her, Ms Croxford sought and was granted leave to obtain updated material about that.[19]
[19]An email from Debra Coombs, Principal Solicitor with the Victorian Government Solicitor’s Office, sent to the Crown instructor on 4 May 2021 and forwarded to the Court, set out the circumstances surrounding a computer being provided to the applicant for her in-cell use on 19 November 2019. The email indicated that the applicant did not seek to load the brief of evidence onto the computer. Upon being advised that she could not access a games site as no prisoner computers had access to the internet, the applicant handed the computer back to the authorities.
Ms Croxford submitted that the applicant has failed to show that a compelling reason exists that would justify the grant of bail.
As for the matter of risk, Ms Croxford submitted that the applicant ‘presents a monumental unacceptable risk and there are no conditions that could be imposed that could make such a risk acceptable’.[20] In supporting that contention, she took the Court to part of the sentence imposed by Judge Lacava upon the applicant on 11 July 2019, in which his Honour stated:
In my judgment your prospects of rehabilitation are poor. Your criminal history suggests to me that you will reoffend in a fraudulent way given opportunity. You’ve shown no regret or remorse for your offending and you have a tendency to blame others for almost every aspect of your troubled life…In my judgment you are capable of defrauding government, business and anyone vulnerable who may perchance happen to come in contact with you.[21]
[20]Application 98.
[21]The Queen v Alimic (Unreported, County Court of Victoria, 11 July 2019, [64])
Analysis
The preliminary issue
In respect of what I have concluded concerning the preliminary issue, I should point out that notwithstanding the very detailed oral and written submissions on behalf of the respondent, practical considerations including the desirability of providing a timely decision dictate that my brief decision on the matter will in no way constitute a treatise on the topic of the jurisdiction of the Court to entertain applications for bail, and the circumstances in which that jurisdiction should be entertained.
Throughout the history of this Court, its inherent jurisdiction to hear applications for bail in any case has been well-accepted. As was stated by the Full Court of the Supreme Court in DPP v Kanfouche:[22]
The Court of Queen’s Bench always had at common law jurisdiction to admit to bail. That power is so well known that it may be unnecessary to cite authority to justify the statement. A modern statement of the position will however be found in R v Spilsbury [1898] 2 QB 615, at p. 620, per Lord Russell CJ. The Supreme Court has a similar power: see Constitution Act 1975, s 85. Reference may also be made to R v Greenham [1940] VLR 236; R v Broome [1955] VLR 208 and R v Barrett [1959] VLR 458.
In 1977, the Bail Act was passed. That Act made a number of changes in the law and procedure relating to bail, but nothing in the Act suggests that it was intended to reduce the common law jurisdiction of the Supreme Court to hear and determine an application for bail in any case…
The proposition that the Bail Act does not reduce the common law jurisdiction of the Supreme Court in the matter of bail is confirmed by the Act itself…[23]
[22][1992] 1 VR 141.
[23]Ibid 142 (Young CJ and Ashley J).
The parties were at one that the Court has the jurisdiction to entertain this bail application. Where they differed was on the question of whether or not I should exercise my discretion to hear the application.
The respondent mounted a strong case why I should not do so. At the heart of the argument was the contention that it would still be open to bring a further application for bail in the County Court without jeopardising the impartial status of the trial judge. Because that course is still open to the applicant, and has not been pursued, it would not be appropriate for this Court to exercise its discretion to entertain the application.
Notwithstanding the force of the respondent’s submissions, I do not consider that it would be an inappropriate exercise of this Court’s discretion to entertain the application for bail.
The applicant sought to bring applications for bail before Judge Murphy in the County Court in respect of these matters on two occasions. On the first of those occasions, bail was refused without there being any true determination on the merits. That occurred in circumstances where the applicant sought an adjournment, and the prosecution urged his Honour to determine the bail application. I make no criticism of either the approach of the prosecution, or the decision of his Honour to comply with it. As for the second application, it fell at the first hurdle, his Honour being satisfied there were no new facts and circumstances.
The reticence of the legal advisers of the applicant to bring a bail application before the trial judge is understandable. So, too, is their seeming expectation that any return to the County Court on the question of bail, if not dealt with by the trial judge, would likely see the applicant again before Judge Murphy, in light of s 18(4) of the Act. It is true, as pointed out by Mr Gyorffy, that that provision contains the important proviso, ‘if it is reasonably practicable to do so’. It may well be, indeed, it is quite likely, that were the applicant to seek to bring on a further application for bail in the County Court, the trial judge may take little convincing that she should not hear the application, and that it may be desirable for the further application to be listed in front of a different judge. That fact, however, does not mean that it would be inappropriate for me to entertain an application to this Court.
To my mind, in the particular circumstances of this case, a decision by this Court to entertain an application for bail would not amount to this Court interfering with the County Court’s discretion on the question of bail, and less still usurping the power of the trial judge or showing a sign of a lack of respect for her Honour or the court in which she sits.
If a special reason is required to justify this Court entertaining the application, it is perhaps to be found in the fact that, due to a power introduced in specific response to the ravages of the COVID-19 upon the criminal justice system, judge alone trials are permitted, and because this is such a trial, the trial judge herself is rendered an inappropriate tribunal to hear the application which is now before this Court. If not for that fact, the appropriate judge to hear an application for bail at this time, considering the trial has already commenced, would undoubtedly be the trial judge.
In the particular circumstances of this case, wherein two earlier applications for bail have been brought before the County Court and there are reasons why an application before the trial judge would not be desirable, I have reached the view that it would be appropriate for me to exercise my discretion in favour of entertaining this application.
The bail application itself
Bearing in mind the high hurdle facing the applicant of establishing to my satisfaction the existence of a compelling reason that justifies the grant of bail, the challenge faced by the applicant in this application is apparent almost immediately upon the commencement of the task of considering the surrounding circumstances, as set out in the non-exhaustive list of matters in s 3AAA(1) of the Act.
The applicant is charged with very serious offending over a long period of time and involving a large sum of money, of the order of $1,000,000 as I understand it, and a high level of dishonesty.
The case against her is, on any sensible view of it, of reasonable strength. Mr Kenny accepted that the case is a strong one, albeit that there is a ‘triable case’ for the defence. The prosecution contended that the case is an overwhelming one. In the circumstances, including the defence concession on the matter, there is no reason not to act for the purposes of this application on the basis that the case is a strong one.
The next matter in the list of circumstances set out in s 3AAA(1) is of no more assistance to the applicant. She has a very extensive criminal history for matters of dishonesty, some of them, including those for which she is currently serving a sentence, of a similar nature to the matters the subject of this application. It is a sad fact that over many years, the applicant has shown herself, time and again, to be a thoroughly dishonest person, well justifying, with respect, the comments made about her by Judge Lacava in the sentence he passed on 11 July 2019.
The applicant’s history of bail is also not to her credit, or to her assistance in this application. She has a conviction for failing to answer bail in 2004 which was of sufficient seriousness to warrant a term of imprisonment. In addition, she faces charges of contravening a conduct condition of bail in respect of the current matters, in which it is alleged she contacted important prosecution witnesses contrary to the grant of bail to which she was then subject.
The personal circumstances, associations, home environment and background of the applicant, beyond those already mentioned, do not provide any measure of comfort to the Court in considering the question of bail.
The address put forward by the applicant as a stable one is far from that. Indeed, there is nothing to indicate that the applicant would ever be permitted to reside there. It is an address with which she has no connection, organised by a friend of hers, and paid for, for now at least, by the applicant’s elderly mother. It is proposed that the applicant would live there alone, upon her emergence from a significant prison sentence, with no apparent means of supporting herself. The landlord is not happy with the applicant living there. As for the APB, the determination has apparently been made by that body that the address is not a suitable one. That is hardly surprising. Far from this being a case where an address proposed for an applicant for bail may hold the promise of stability and support, the fact of this address having been put forward emphasises the serious difficulties confronting the applicant in this application.
Another of the fundamental difficulties facing the applicant is the fact that she is serving a sentence of imprisonment, the head term of which will in all probability continue until beyond the time when the very charge for which she is seeking bail is determined by the County Court. Although the applicant’s non-parole period finished in February 2020, no determination has been made by the APB to release her on parole, and it seems the matter of her parole will not be determined until the resolution of the current charge of conspiracy to defraud.
Mr Kenny submitted that it would be unjust were I to decline to grant bail simply because the applicant is serving a sentence of imprisonment but eligible for parole in another case. That may be so. The reality is, however, that the fact that the applicant, rather than actually being in custody because of her remand on this matter, is currently serving a sentence of imprisonment and unlikely to be released on parole until such time as the current charges are concluded, is a relevant matter to take into account as one of the surrounding circumstances of this application.
Insofar as Mr Kenny sought to rely, as one of the relatively short list of matters relied upon in combination in proof of a compelling reason to justify bail, upon the availability of supervision and oversight of the applicant by the APB, it would be entirely speculative to suppose there will ever be such supervision and oversight, because there is no indication that parole will be granted at any time relevant to a grant of bail in this case.
One of the other matters relied upon by Mr Kenny was the fact that the long period of time the applicant has spent in custody will have had a deterrent effect upon her. The circumstances of her life and criminal history could hold out no hope that that is actually the case. The indications unfortunately are that the applicant has clung steadfastly to her chosen dishonest path notwithstanding the numerous terms of imprisonment imposed upon her over the years.
As for the delay relied upon in this case, s 3AAA(1)(k) requires me to consider ‘the length of time the [applicant] is likely to spend in custody if bail is refused’. What is referred to there could be no more than the weeks between now and the final resolution of the case. To this point, the applicant has in fact, as I was informed, served no time in custody that would be considered to be pre-sentence detention should she eventually be found guilty of the conspiracy. As already noted, of course, the applicant is serving a sentence of imprisonment. There is nothing to indicate that even were I to grant her bail, she would be released from custody. In this case, the issue of delay is of no significance.
Turning to the likely sentence to be imposed upon the applicant should she be found guilty, this would be expected to be substantial, in light of the seriousness of the alleged offending and the lengthy criminal history of the applicant. There would no doubt be totality issues to consider, but as things stand, the applicant has spent no time in custody referable solely to this matter, and a significant term of imprisonment awaits her should she be found guilty.
Turning to the applicant’s supposed inadequate access to a computer in her cell, I am not satisfied that the absence of a computer in her cell will prejudice her position in adequately preparing her defence and instructing her counsel. The applicant has had some years to ready herself for the trial which is shortly to recommence. She has had ample opportunity to instruct her legal representatives in the years leading up to the trial. Mr Kenny does not assert that he and Ms Thies have been inadequately instructed. Insofar as he submits that the applicant has a right to view the documents and to have them at her fingertips in order to be able to give instructions, if that amounts to a claim that the applicant is entitled to have a computer at her disposal at all times, that is clearly not the case. Her access to a computer in custody would of course be governed by the requirements and limitations imposed by the prison authorities. The fact is, as the affidavits of Brendan Money and the recently obtained email from Debra Coombs attest, the applicant was provided with a computer to have in her cell in November 2019. She did not seek to load the depositions onto the computer, made enquiries about gaining access to a games site, and later handed the computer back to the authorities as she did not want to retain it. The evidence indicates this computer may still be available to her should she seek it. I do not accept that the applicant has been denied appropriate access to an in-cell computer.
Having had regard to all of the surrounding circumstances of this case, I am wholly unconvinced that the applicant has discharged the onus resting upon her of establishing the existence of a compelling reason in justification for a grant of bail to her. In fact, nothing even approaching a compelling reason has been established. I would refuse bail for that reason. There is unfortunately every reason why the applicant should remain in custody until this matter has been concluded.
For completeness, I note that even had I been of a different view in respect of the first step of the two-step bail process, I would have been firmly of the view that the respondent has established that the applicant would pose an unacceptable risk if released on bail. The combination of matters relied upon in this regard by Mr Kenny would have been inadequate to satisfactorily ameliorate the obvious risk of reoffending posed by the applicant.
In this regard, insofar as Mr Kenny submitted that some comfort as to the future risk posed by the applicant could be derived from the fact that the offending alleged against her was not spontaneous or something that occurred unexpectedly because of a mental health issue or disordered lifestyle, the Court could draw no such comfort. What is more telling is the fact that a mature adult person with the serious history of dishonest offending claimed by the applicant is alleged, yet again, to have carried out deliberate, planned, extensive, dishonest offending. Even in the relatively short period of time remaining until these matters will be finally resolved, and even with the measure of control imposed upon the applicant should she be released on bail by virtue of the regular contact with her legal advisers and the trial court which this would entail, this Court could have no confidence whatsoever that she would not again surrender to the dishonest tendencies which have marked her adult life. The risk posed by the applicant would be unacceptable, and remain so no matter the conditions imposed.
Conclusion
For the reasons stated, this application for bail must be refused.