Re Barden (Bail Application)
[2015] VSC 493
•11 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0122
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Timothy BARDEN |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 September 2015 |
DATE OF JUDGMENT: | 11 September 2015 |
CASE MAY BE CITED AS: | Re Barden (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 493 |
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CRIMINAL LAW – Bail – Applicant charged with extortion and other offences – Applicant required to show cause why his detention in custody not justified – Whether applicant an unacceptable risk – Bail Act 1977, s 4(4), s 4(2)(d)(i) – Robinson v The Queen [2015] VSCA 161 – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Gauld (Solicitor) | Cameron Gauld (for Victoria Police) |
| Applicant in person |
HIS HONOUR:
Introduction
Timothy Barden, the applicant, seeks bail from this Court.
For the reasons that follow, the application for bail should be refused.
The applicant is aged 35 years.
On 1 April 2015, following the execution of a search warrant at his residential address, the applicant was arrested, and was charged with the following offences:
·extortion with threat to kill (charge 1);
·theft of a motor vehicle (charges 2, 3, 4 and 5 );
·possession of a drug of dependence, methylamphetamine (charge 6);
·being a prohibited person in possession of a firearm (charge 7);
·receiving stolen goods (charge 8);
·dealing with property suspected of being the proceeds of crime (charge 9) ;
·possessing a prohibited weapon (charge 10);
·possessing cartridge ammunition (charge 11);
·possessing a firearm without a serial number (charge 12); and
·committing an indictable offence while on bail (possession of methylamphetamine) (charge 13).
Mr Barden has pleaded not guilty to charges 1 and 2, and 4 and 5. Charge 3 was withdrawn. He has indicated his intention to enter a plea of guilty to charges 6 to 13 inclusive.
In the circumstances, the Court cannot grant bail unless the applicant is able to show cause why his detention in custody is not justified. Section 4(4) of the Bail Act 1977 (‘the Act’) relevantly provides:
(4) Where the accused is charged—
(a) with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence;
…
(d) with an offence against this Act—
the court shall refuse bail unless the accused shows cause why his detention in custody is not justified …
Previous bail applications
The applicant has made several previous application to the Magistrates’ Court for bail.
On 2 April 2015, at the Magistrates’ Court at Warrnambool, the magistrate refused bail because the applicant had failed to ‘show cause’, and was deemed to pose an unacceptable risk of interfering with witnesses.
A further bail application made on 27 April 2015 to the Magistrates’ Court at Warrnambool was again refused because the applicant had failed to show cause, and was deemed to pose an unacceptable risk.
A further application still was made on 19 June 2015 to the Magistrates’ Court at Warrnambool, but was refused because there were no new facts or circumstances.
Mr Barden appeared for contest mention at the Magistrates’ Court at Warrnambool via video link on 27 July 2015. The presiding magistrate declined to hear a bail application, and adjourned the matter for a further contest mention.
At the further contest mention on 11 August 2015, the magistrate heard yet a further bail application — after finding that Mr Barden had established new facts and circumstances — but refused bail because the applicant had failed to show cause, and because he was an unacceptable risk.
The contested hearing of the disputed charges was adjourned to the 29 October 2015 for hearing at the Magistrates’ Court at Warrnambool. I note that Mr Barden told me that, despite having previously been represented by solicitors experienced in the criminal law, he did not realise that he could contest the charge of extortion before a judge and jury. He has indicated that he will explore that course, potentially leading to further delay in the charges being resolved.
The applicant’s prior history
The applicant has amassed many convictions between 1999 and 2012, including property, dishonesty, driving, weapons, drugs, justice and violence offences. Between July and December 2014 the applicant was imprisoned for breaching parole.
Apart from his prior history, the applicant has outstanding charges, including one charge of handling stolen goods (listed for hearing as a plea of not guilty at the Magistrates’ Court at Warrnambool on 17 November 2015); and various driving and littering charges (listed for first mention at the Magistrates’ Court at Warrnambool on 14 September 2015).
Mr Barden has also been charged with further offences, being one charge of attempting to receive an unlawful substance — amphetamine and suboxone — in a police gaol (listed for a contested hearing at the Magistrates’ Court at Warrnambool on 29 October 2015); and one charge of making threat to kill, and one charge of making a threat to inflict serious injury (both of which are listed for further mention at the Magistrates’ Court at Warrnambool on 14 September 2015). He explained to me that he has a good defence to these charges.
The applicant’s submissions
Mr Barden submits that he should be released on bail. He submits that he has shown cause why his detention in custody is not justified, and that the prosecution has failed to discharge its burden of establishing that he is an unacceptable risk of not answering bail, or of committing further offences, or endangering the safety of the public, whilst on bail.
The applicant submits that he did not get a fair hearing in the lower court, and that the prosecution acted improperly, it being asserted that the informant has a personal interest in the matter, because Mr Barden and the informant’s sister were previously in a relationship. He submits that he had inadequate access to a lawyer prior to his previous bail hearing, and that the bail application on 11 August 2015 should not have proceeded following his oral outburst directed at the prosecutor.
Further, the applicant submits that the case against him in relation to charges 1 to 5 is weak. He argues that the complainant refused to return to him numerous items of property, including his vehicles, and so he lawfully obtained the vehicles by doing what he believed he was legally entitled to do to retrieve his property. Specifically, he denies that the threats the subject of charge 1 were made.
As to charges 6 to 13, Mr Barden submits that there is a real risk that he will spend longer on remand than what he would be required to serve as a sentence for these charges.
Additionally, the applicant argues that he cannot receive a fair trial while in custody, and that he does not have adequate facilities to prepare his defence. In particular, he asserts that:
·most of the defence material is in an electronic format (such as CCTV footage and audio recordings), and he has difficulty reviewing a CD containing audio recordings whilst in custody;
·he has difficulties in drafting, filing and serving witness summonses, and viewing materials, whilst in custody;
·he lacks access to legal research and reference materials, a computer, or stationery;
·the general conditions of his imprisonment — including the costs of telephone calls, his limited earning capacity, and the conditions of transportation to court — compromise his capacity properly to participate in proceedings; and
·were the trial held in Warrnambool, he would be kept in police cells where he was previously assaulted by police.
Moreover, in his affidavit in support of his application, Mr Barden notes that the prosecution have been unable to contact the complainant, and that he thus cannot be guaranteed a timely trial, this fact providing a further reason why he should be released on bail.
Ultimately, Mr Barden submits that any risk he is said to pose can be made acceptable by the imposition of appropriate conditions, including geographical restrictions on his movements; restrictions on driving a motor vehicle; a curfew; reporting to police twice daily; surrender of any telephone; and the like. He notes that he has strong ties to the jurisdiction, and has good support and stable accommodation. He would, if required, be prepared to stay in Melbourne.
Respondent’s submissions
The respondent opposes bail on the grounds that there is an unacceptable risk that the applicant would, if released on bail, fail to answer his bail, commit an offence, endanger the safety or welfare of members of the public or interfere with witnesses, or otherwise obstruct the course of justice whether in relation to himself or any other person. Alternatively, the respondent submits that Mr Barden has not shown cause as to why his detention in custody is not justified.
In particular, the respondent relies on the following:
·the applicant has been charged with an offence against the Act;
·he has committed further offences while on bail for an indictable offence;
·he has four previous charges of failing to appear on bail;
·he has an extensive criminal history;
·he has committed further offences whilst in custody;
·the complainant and another witness are fearful for their safety;
·that fear is justified, since the applicant has access to firearms and ammunition;
·the applicant has an involvement in illicit drugs;
·his partner has been involved in drug-related offending whilst residing at Mr Barden’s address;
·stolen goods have been recovered at Mr Barden’s siblings’ addresses;
·the applicant’s partner and family attend and support him at his court appearances;
·the likelihood that the applicant will be imprisoned for the current offending; and
·his overall lack of respect for the law or for authority.
Discussion
The applicant has a number of concerning prior convictions, including intentionally causing injury, assault and making a threat to kill in March 2003; aggravated burglary whilst armed with a firearm in August 2005; and intentionally causing serious injury in November 2009 (leading to a sentence of five years’ imprisonment with a non-parole period of three years). Moreover, he has many dishonesty and drug offences, and a number of weapons offences. He has breached the Act, and has breached court orders (including suspended sentences of imprisonment).
Having regard to the applicant’s history, in my opinion there is a real and unacceptable risk that, if released on bail, he will fail to surrender himself into custody in answer to his 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 allegations surrounding the extortion are gravely concerning, including, as they do, a threat to strap the complainant’s children into a car, run the car into a power pole and kill the children, and a threat to burn the children of the complainant alive. Mr Barden asserts that he has a good defence to the charges, and claims that his brother is in a relationship with the complainant. That may or may not be so, but presently, I am unable to see that the relevant charges are, as the applicant asserts, ‘weak’. To a large extent they will turn on the evidence of the complainant, and thus on her credibility and reliability. Her credit is yet untested. That does not, however, justify a conclusion that the charges are lacking in strength.
Moreover, on 10 January 2015, in the applicant’s bedroom, police found a sawn-off .22 calibre firearm that had the serial number ground off, together with cartridge ammunition. The finding of such a weapon, particularly when looked at in light of his prior convictions for weapons offences and violence, adds credence to the notion that the applicant poses an unacceptable risk to witnesses or that he will commit an offence whilst on bail. Furthermore, I think it almost inevitable that he will receive a substantial sentence of imprisonment for the offence of being a prohibited person in possession of a firearm.
As I observed recently in Robinson,[1] it is difficult to imagine a situation where an accused person realistically could ever ‘show cause why his detention is not justified’ in circumstances where the court is satisfied that the person poses an unacceptable risk within s 4(2)(d)(i) of the Act. This is such a case.
[1]Robinson v The Queen [2015] VSCA 161 [81].
Finally, I observe that the difficulties that the applicant claims that he will experience in preparing his defence in his present conditions of custody appear somewhat chimerical. He demonstrated throughout the hearing that he had a very good command of material that might impinge on the credit of the complainant and another witness; and, as I observed in the course of the hearing, his lack of access to evidence in electronic form does not seem to have materially inhibited his ability to master relevant evidence bearing on the credibility and reliability of witnesses against him. I am prepared to infer that the conditions are not ideal for the preparation of his case unrepresented, and that he has encountered — and will continue to encounter — difficulty whilst in custody. The supposed difficulties do not, however, outweigh the considerations which point to the applicant being an unacceptable risk in the relevant sense, and do not dictate a grant of bail. Corrections authorities must, however, ensure that the applicant is afforded a reasonable opportunity to prepare his defence. Failure to do so may have future ramifications. As I have said, however, the applicant has not satisfied me that his present conditions of custody — alone or in combination with the other matters upon which he relies — justify the Court finding that he has shown cause why his detention in custody is not justified.
Order
The application for bail is refused.
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