Re application for bail by Konstantin German
[2016] VSC 207
•31 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0027
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by KONSTANTIN GERMAN |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March 2016 |
DATE OF JUDGMENT: | 31 March 2016 |
CASE MAY BE CITED AS: | Re application for bail by Konstantin German |
MEDIUM NEUTRAL CITATION: | [2016] VSC 207 (revised 14 June 2016) |
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CRIMINAL LAW – Bail – Multiple violence offences – Show cause situation – Applicant an unacceptable risk – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | Self-represented | NA |
| For the Crown | Mr S Ginsberg | Office of Public Prosecutions |
HIS HONOUR:
By application dated 3 March 2016 Konstantin German (‘the applicant’) made application for bail. The applicant is not represented. He expressed his application as an appeal. It is, as I explained to him at the hearing of the application, an application to this Court in its inherent jurisdiction. That jurisdiction has been specifically preserved by s 18AA(2) of the Bail Act 1977 (‘the Act’).
The applicant has been charged with the following offences:
·One charge of Armed with Criminal Intent
·One charge of Reckless Conduct Endangering Life
·One charge of Attempted Kidnapping
·One charge of Threat to Kill
He had originally been charged with attempted murder and was committed for trial to this Court on that charge and a number of other charges. Some summary charges were remitted to this Court.
The Director of Public Prosecutions filed an indictment for the present charges. The filing of that indictment meant that the matter was no longer in the original jurisdiction of this Court and the matter was remitted to the County Court. That resulted in the unfortunate delay from 28 July 2014 to the present trial date.
It is alleged that the applicant attempted to kidnap the victim.[1] At the time he was armed with two spear guns. He is well known to the victim. The applicant has for many years been in dispute with the victim’s mother and father. The applicant’s former wife was the aunt of the victim by marriage. There appears to have been a protracted and acrimonious dispute involving a joint investment between the parties. The applicant appears to have been largely unsuccessful in the litigation. The victim says that the dispute is ongoing. The applicant says it was finalised some years ago.
[1]The facts of the alleged offending are set out in the Summary of Prosecution Opening, which is exhibited to the Affidavit in Opposition to an Application for Bail dated 17 March 2016 and filed by the solicitor charged with care and conduct of the applicant’s file at the Office of Public Prosecutions.
The first two charges against the applicant involve the use of a weapon. The applicant is therefore in a position that he must show cause why his detention in custody is not justified.[2]
[2]Section 4(4) of the Act.
The applicant has consistently denied any involvement in the offences and has served a notice of alibi. The identity of the alibi witness is unknown by the applicant but he submits that if he were at large he could find the witness. The applicant alleges that the offences were in fact committed by his son in combination with the victim.
The applicant has made a number of applications for bail in both the Magistrates’ Court and the County Court. All of these applications have been refused. The applicant has now been in custody since 28 July 2014.
At the hearing of the application the applicant filed detailed written submissions 34 pages in length (Exhibit 1) and an affidavit in support of his application. These submissions sought to establish error as if this was an appeal strictly so called. I have treated the submissions as being in support of an application for bail. The applicant is of right entitled to apply to this court for bail.
I have already noted that the applicant is unrepresented although he informed me that he is looking to obtain representation for his trial.
It seems best to consider the application in the following way. The applicant submits that he had shown cause as result of a number of matters and that because he had shown cause he has also shown why the prosecution has not demonstrated that he is an unacceptable risk.
The applicant set out the following matters in support of the application:
(i) His parents are old and unwell. That is particularly so for his mother who is 84 and suffering from Alzheimer’s disease and who recently had an operation to remove a brain tumour. The applicant submits that he needs to be home to help his 88 year-old father to look after his mother. He says his younger brother is unable to do so. He also says that the victim and his wife (the applicant’s sister-in-law) are allegedly attempting to force the sale of his parents’ home in pursuit of $450,000 costs in relation to the litigation described above.
(ii) The applicant says that he has inadequate access to legal material whilst in prison and inadequate access to internet facilities and other material.
(iii) The applicant also submits that he needs to be at large to find his alibi witness.
(iv) The applicant submits that he needs to return to Perth to put his affairs in order and to collect various documents. He says that there is no one who could do that for him.
(v) The applicant also needs to complete his tax returns for the last 7 years. That task depends upon his being able to access records in Perth.
(vi) The applicant could seek employment to do something at least about his financial affairs and perhaps fund his defence.
(vii) The applicant has dental work which needs completion.
(viii) The applicant is informed that if he remains in custody his registration as a Certified Practising Engineer will be at risk and his ability to return to the engineering profession will be jeopardised.
(ix) The applicant wishes to continue his relationship with his recent de facto partner in Perth.
(x) The applicant has no proper convictions and had abided by the conditions of a family violence order and an interim order.
The applicant also makes a number of submissions about the weakness of the prosecution case including the absence of any DNA or fingerprint evidence.
The applicant also set out in his submission material to show that he is a good citizen who has contributed to the community.
The applicant placed reliance upon two psychologists’ reports as demonstrating that he was not an unacceptable risk of reoffending.
The applicant then carried out a detailed analysis of the prosecutor’s affidavit largely directed towards establishing error of her Honour Judge Hannan in refusing bail on 23 February 2016.
The applicant submits that a spear gun is not an offensive weapon within the meaning of the Act. I am satisfied that it is.
The applicant also sets out a number of submissions based on the proposition that the prosecutor must prove that the applicant is an unacceptable risk beyond reasonable doubt.
The applicant also makes detailed submissions about each of the paragraphs relating to unacceptable risk under s 4(2)(d) of the Act. Those submissions are largely argumentative and predicated upon the proposition that the allegations against him are false. The submissions include a denial that the applicant is the creator of the fictitious ‘Vigilant Fathers of Australia’. The prosecution alleges that that ‘organisation’ sent threatening letters to the victim and members of the victim’s family prior to the alleged offending. The applicant further submitted that the applicant’s son and daughter-in-law are in fact that ‘organisation’. He says that he is not a flight risk, which he said was demonstrated by his decision to return to Melbourne from Adelaide after the alleged offending occurred, and that his parents are willing to provide a surety for him in the sum of $10,000.
The applicant engaged in detailed but argumentative analysis of the prosecution submissions stating on numerous occasions that the prosecutor had to prove the case beyond reasonable doubt. The applicant also submitted that the fact that only ‘very minor’ injuries were sustained and that the spear gun was not discharged in the course of the alleged offending reduced the seriousness of the alleged offending.
The prosecutor submitted that the applicant had not shown cause and that he was an unacceptable risk, in particular, of reoffending whilst on bail.
The prosecutor relied upon the material set out in the depositions to show that the prosecution case was a strong one and to establish animosity between the applicant, on the one hand, and the victim and his extended family, on the other,
The two positions put could not be more dramatically opposed. On the one hand the applicant says that he is the subject of a most elaborate conspiracy involving the victim and the applicant’s son. It is not clear what the motive for that conduct could be. On the other hand the prosecution submits that the applicant is the author of the attack and he engaged in a quite detailed persecution of the victim and the extended family.
The depositions were tendered at the hearing of the application and I have read the material. I am satisfied the case against the applicant is a strong one. I do not believe that there is any significant material to support the applicant’s conspiracy theory. Having observed the applicant and listened to him I am satisfied that he is an unacceptable risk of reoffending. I am so satisfied on the balance of probabilities. The applicant’s submission that I need to be satisfied beyond reasonable doubt is erroneous.
It is not necessary for me to express a view about whether or not the applicant has shown cause depending on the view taken by the judges of this Court since I am satisfied that the prosecution has established unacceptable risk it follows either that the applicant has not shown cause, or alternatively, even if he has shown cause, he should still not be admitted to bail.
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