Re Application for Bail by Jan Visser (aka John Visser)
[2013] VSC 736
•18 DECEMBER 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0021 of 2013
| IN THE MATTER of the Bail Act 1977 (Vic) |
| v |
| IN THE MATTER of an Application for Bail by JAN VISSER (aka JOHN VISSER) |
---
JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 DECEMBER 2013 | |
DATE OF RULING: | 18 DECEMBER 2013 | |
CASE MAY BE CITED AS: | Re Application for Bail by JAN VISSER (aka JOHN VISSER) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 736 | |
---
BAIL – Show cause – Whether applicant unable to adequately prepare defence in custody – Whether unacceptable risk that applicant would fail to answer bail – Bail refused – s 4 Bail Act 1977.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The Applicant was self represented | |
| For the Respondent | Mr B Young SC | Commonwealth Department of Public Prosecutions |
HIS HONOUR:
In this proceeding I have before me an application by Mr Jan Visser for bail.
On 11 August 2012, the applicant was released on parole in respect of a sentence imposed and being served in NSW. He was immediately arrested and has been on remand in respect of the charges that he currently faces since that time. He now faces trial on an offence that carries a statutory life sentence maximum term, the circumstances of which may ultimately be regarded as a most serious example of the most serious category of drug offence. His trial is scheduled to commence in February 2014. At that time he will have been on remand in respect of the charges he faces at trial for 19 months.
However, his trial has previously been twice adjourned. On the first occasion, the arrangement for the transfer of his co-accused from South Australia had failed. This was not an occurrence for which Mr Visser was responsible. On the second occasion, in September, he had dismissed his legal team.
Each of the applicant and the respondent have filed affidavits and extensive written submissions, which I have read.
Although s 4(1)(b) of the Bail Act 1977 provides a prima facie right to bail for persons awaiting trial, s 4(2)(d)(i) provides that a court should nevertheless refuse bail if it is satisfied that there is an unacceptable risk that the accused person, if released on bail, would fail to surrender himself into custody in answer to his bail or commit an offence whilst on bail.
There are other considerations, but those two considerations resolve this application.
The proper approach to resolving questions of bail in these circumstances was addressed by President Maxwell sitting at first instance in Re Asmar.[1] In that case, after referring to an earlier decision of DPP v Horika,[2] the President stated:
[1][2005] VSC 487.
[2][2001] VSC 237.
In my view, the question – the only question – for the Court on an application to which s.4(4) applies is:
“Has the applicant shown cause why his/her detention in custody is not justified?”
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. This does not mean that the “unacceptable risk” issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
So, I turn then to that question: has the applicant shown cause why his detention in custody is not justified?
The applicant principally contends that if he was granted bail, he would be afforded an opportunity that is currently being denied to him to prepare for his trial to commence in February 2014. I cannot see that in his circumstances, the question of whether or not he is on bail is relevant. Leaving aside his concern for his family and his assets, Mr Visser complains that he is unable to obtain statements from key defence witnesses on his terms.
In support of this submission, he referred me to the decision of Hume J in the New South Wales Supreme Court in Shalala v R.[3] In this case the applicant for bail was charged with drug offences. He was, as is the applicant in this case, representing himself. He had made various applications to the gaol authorities for assistance in preparing his defence. Mr Shalala’s precise circumstances are not the same as the circumstances of the applicant in this case, to which I will shortly return. However, Hume J expressed the principle, referring to the New South Wales statute, in these terms:
The terms of s 8A of the Bail Act 1978 and the significance of the matters referred to in paragraph (a) and (c) of s 32(1) of that Act 1978 are such that in the normal course, I would unhesitatingly refuse Mr Shalala's application for bail. However, he is entitled to prepare his case. Given that he is effectively being prevented from doing so whilst in custody by the attitude of the Corrective Services, I feel constrained to give him bail.
[3][2012] NSWSC 351.
As expressed, the principle is unexceptional. Hume J is explaining the exercise of his discretion on the facts before him. It is clear, with respect, on reviewing the whole of that decision that the learned judge's conclusion was justified by those circumstances.
In the present case, the attitude of Corrections authorities to assisting the applicant in the preparation of his defence was the subject of evidence. I received an affidavit of Brendan Francis Money sworn 29 November 2013. Mr Money is the Assistant Commissioner, Sentence Management Branch of Corrections Victoria.
The applicant requested that Mr Money be made available for cross-examination and he appeared by video link and was cross-examined by the applicant.
In paragraph 8 of his affidavit, Mr Money stated:
The applicant had previously written to me seeking to confer with prisoners who are his co-accused and he raised this issue in the review. I advised the applicant the other prisoners have to consent to talk to him before any arrangement can be made.
Should the other prisoner agree to meet with the applicant, the panel suggested the meeting could be done by video link, but the applicant wanted to meet with them. It was agreed to consider the possible logistics (not contact visit, video link, lawyer for other prisoner present) of a meeting once the prisoners had agreed to meet. Mr Barbaro has agreed to meet with the applicant but I understand he requested the meeting be coordinated through his legal team, which has not yet been arranged.
The applicant tendered, and I received, correspondence exchanged between the applicant and Mr Money concerning the question of his access to Mr Barbaro, Mr Zirilli, Mr Scarponi, Mr Ropa and his co‑accused, Mr Falanga. In evidence, Mr Money confirmed the matters to which he had deposed in his affidavit.
Mr Money also stated that he was aware that Mr Visser was representing himself and stated that the Office of Corrections was seeking to accommodate that situation within the confines of its governing rules. Mr Money made it clear that there were basically two alternatives being provided to the applicant. Mr Money explained that these alternatives had been discussed at a face‑to‑face meeting with the applicant. Because Mr Barbaro had agreed in principle to meet with the applicant, the procedure for meetings with the prisoners who are his defence witnesses would be first resolved in relation to the applicant’s meeting with Mr Barbaro.
In that regard the applicant was offered the opportunity to either interview Mr Barbaro by video link or to arrange for a court visit; that is either a legal representative instructed by the applicant meets with Mr Barbaro or the applicant meets with a legal representative instructed by Mr Barbaro.
The applicant has been taken up either of these opportunities. He complains that a video link conference, is insecure in privacy or confidentiality terms because the Office of Corrections will require that a prison guard be present during the video link. There is, nonetheless, no complaint by Mr Barbaro about that process. The applicant contends that is because Mr Barbaro does not appreciate that the applicant will seek to ask him questions about uncharged matters.
While I am not fully conversant with the facts of this matter, it would seem that primarily the matters about which the applicant would seek to obtain a statement from Mr Barbaro will concern the conspiracy charges upon which Mr Barbaro has been sentenced. Further, there is nothing to say that if a video link interview was organised, that Mr Barbaro could not be selective in terms of the issues that he wishes to respond to according to his perceptions of his own circumstances. The summary rejection by the applicant of this opportunity is unreasonable. I am unpersuaded that the applicant could not obtain the statement he requires for his defence by the video link process. Had that process been unsuccessfully attempted, different considerations might arise.
In any event, that offer having been made, it has been the choice of the applicant, for the reasons that I have explained, not to adopt it.
The alternative choice of a court visit has not been adopted by the applicant because he is currently not legally represented. I was informed that he had, in approximately September this year, terminated the retainer of his then solicitors and since that time has not obtained legal representation. The applicant explained to me from the dock that he has been unable to obtain legal representation because all of the lawyers on the panel list provided to him by Legal Aid have a conflict of interest. However, the circumstances of his dealings with Legal Aid in order to obtain legal representation have not been the subject of evidence or of any thorough examination and I am not persuaded that the second opportunity presented by the Office of Corrections - that the applicant might avail himself of Court visits for obtaining statements from the witnesses for his trial - could not in some way be facilitated.
Accordingly, it is my view that the contention advanced by the applicant that he is unable to prepare his defence whilst he is in custody is not established on the facts and that this circumstance is distinguishable from the circumstances of Mr Shalala for these reasons.
There is a second consideration which is that Mr Visser has not persuaded me that the processes for contact with the persons from whom he desires tom obtain statements would be any different or easier for him if he was on bail.
However, were that not the case and assuming that his capacity to prepare his defence is compromised in some way, I would nonetheless be satisfied that there is an unacceptable risk that if the applicant was released on bail, he would fail to surrender himself into custody in answer to his bail or would commit an offence whilst on bail. That conclusion requires that alternative methods to facilitate communication between Mr Visser and the potential defence witnesses be explored rather than Mr Visser be granted bail.
In respect of the risks should Mr Visser be granted bail, extensive written submissions were made on behalf of the respondent by its counsel, Mr Young SC. I do not propose to rehearse all of those submissions, save to state that, in a limited respect, the applicant made the following answer to my primary concern.
The applicant has a prior conviction for escaping from custody. He also has other relevant prior convictions concerning an earlier attempt to escape from lawful custody in 1988 and failing to appear in accordance with a bail undertaking in 2007. The applicant has an extensive criminal history in relation to substantive criminal offences that I need not detail. It is consistent with the description career criminal.
The applicant contended that, in relation to the charge of escaping lawful custody, that he was discharged in error. Whether or not there was any error or mistake made by Corrections officers in New South Wales is not to the point. The applicant knew he was not the prisoner entitled to bail when he impersonated that prisoner and forced a mistake. The applicant pleaded guilty to the charge and he was convicted and sentenced for it. This application is no place to revisit that conviction.
The other matter that the applicant contested was the respondent’s contention that he now faces a significantly greater sentence that when he escaped. The applicant referred to some discussions that had occurred in open court on 12 December 2013 before King J, the trial judge. These discussions concerned the question of whether the applicant might be prepared to plead guilty to a lesser charge. The applicant gave me some information concerning that discussion. The transcript of that hearing is not presently available to me and Mr Young SC did not entirely accept the applicant’s version of that exchange. This is not a matter into which I need now inquire.
It is not a situation where the applicant's entitlement to bail is to be viewed in a changed circumstance; that is one where he is no longer contesting the charges which he is presently contesting, but has agreed to plead guilty to some other or lesser charge and accordingly faces a lesser penalty that would not provide an incentive for him to abscond if granted bail. Were the applicant to plead as he foreshadows, that would be a fresh circumstance that would permit an application to be made and considered, but it has not occurred and any further consideration of it is not relevant to this application. I invited the applicant to adopt that course if minded to do so, pointing to the common practice to revoke, rather than grant, bail on a plea of guilty on arraignment, but he declined.
For these reasons, and, I will add, on the basis of the material that is contained in Mr Young's written submissions that has not been referred to, I am not satisfied that the applicant has shown cause that his detention in custody is not justified.
Bail will be refused.
---
0