Re Clifford
[2009] VSC 352
•14 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1485 of 2009
IN THE MATTER of the Crimes Act 1958
and
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for Bail by DAVID CLIFFORD
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 AUGUST 2009 | |
DATE OF JUDGMENT: | 14 AUGUST 2009 | |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY D CLIFFORD | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 352 | |
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BAIL – Applicant charged with offences including aggravated burglary – Necessity for applicant to show cause why his detention not justified – Whether an unacceptable risk that applicant would endanger the safety or welfare of members of the public if released – Application refused – Bail Act 1977, s.4.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M J Gleeson | M J Gleeson & Associates Pty |
| For the DPP | Ms S Pillai | Craig Hyland, Solicitor for Public Prosecutions |
HIS HONOUR:
This is an application for bail made in circumstances where the applicant, Mr David Clifford, has been charged that, on 9 June this year, he committed a number of offences. One of these is aggravated burglary. Another is that he acted in a manner prejudicial to the good order and management of a police gaol. And the final charge is that he resisted police.
A person charged with aggravated burglary who then becomes an applicant for bail makes that application subject to s.4 of the Bail Act 1977. By s.s(4)(c) of that section, the Court shall refuse bail where the applicant has been charged with that offence unless the applicant shows cause why his or her detention in custody is not justified.
The requirement to show cause moves the burden of proof from the Crown, as the respondent to an application for bail, to the applicant. That being the case, I must look at the evidence available to me and ask whether, on that evidence, the applicant has discharged the burden of satisfying me on the balance of probabilities that he should be granted bail because his continued detention in custody is not justified.
In examining the application, I also must refuse it if I am satisfied that there is an unacceptable risk that, if the applicant were released on bail, he would (amongst other things) endanger the safety or welfare of members of the public. That is a requirement of s.4(2)(d)(i). In relation to this aspect of the application the onus, as I understand it, remains on the respondent. In other words, the prosecution must satisfy me that, if released, there would be an unacceptable risk that the applicant would come within the scope of the sub-section.
The circumstances which, according to the prosecution, resulted in charges being laid against the applicant are not fully known to me. There is some suggestion, which has not been the subject of any sworn evidence, that on the morning of 9 June this year the applicant was driving on the Eastern Freeway when his car ran into mechanical problems. As a result, so the suggestion is, he left the car either on the Freeway or in its vicinity and walked to Hampshire Road, Doncaster. That address, as I understand it, is within easy walking distance of the relevant portion of the Eastern Freeway.
When he arrived at No. 6 Hampshire Road, the applicant entered the dwelling house at that address. The prosecution case is that he entered the premises without permission. That is an allegation which the applicant does not deny, although he does challenge each of the present charges.
The evidence now before me would suggest that the two occupants of the premises at the time the applicant entered were surprised, indeed shocked, to find that they were not alone. Certainly, that evidence is that one of them was shocked to the point that she suffered as a result a fibrillation of the heart, or some other condition similar to a heart attack, and for the next several days was hospitalised as a result.
What also seems to be clear enough is that the person who suffered the heart condition – a condition which first became symptomatic only on the applicant’s entry into her house – was sufficiently concerned about his presence on the property to ring 000.
The result was a quick police response. On their arrival, the officers discovered that the applicant had recently departed by partially removing a flywire screen from a room at the rear of the house and then decamped onto Wetherby Road, which forms an intersection with Hampshire Road.
The evidence before me therefore suggests that, whether or not in other respects the prosecution case is a strong one, the occupants of the house – and, in particular, one of them – were very concerned at the applicant’s unannounced presence. That concern resulted in a call on the emergency telephone number and the applicant’s rapid retreat once the police arrived. I conclude that he was aware of his inappropriate presence in the house, and feared arrest were he to remain.
In these circumstances, the issues of both unacceptable risk and “show cause” are live ones. The presence of the applicant on the premises at 62 Hampshire Road remains largely unexplained. Although I am inclined to think that there is insufficient evidence for me to conclude that the applicant was then under the influence of drugs, I am left – it seems to me – with the inevitable conclusion that the applicant was improperly on premises in circumstances which endangered the safety of others on those premises. There are very few excuses for an unauthorised entry into the dwelling of a complete stranger. None has been proffered in this case. If nothing else, such an entry exposes those legitimately present to the danger of a very nasty shock, with consequential hazards to their health.
The fact of the applicant’s presence in the circumstances that I have outlined being entirely unexplained (apart from the suggestion, not made by any presently credible evidence, of a problem with the applicant’s car) leads me to the conclusion that there is a risk that if the applicant is allowed free on bail there will be a further episode of aberrant behaviour of some kind comparable with his behaviour on 9 June. Such behaviour might endanger the safety or welfare of members of the public.
In the circumstances which I have outlined, it is (it seems to me) impossible for a “show cause” application to succeed. In saying this, I have some sympathy with the position of the applicant, which has been ably put to me by his counsel, Mr Gleeson. It does nevertheless seem to me that there are problems with any finding that the onus on the applicant can be discharged where, while on bail (and on parole) he has done something so obviously inappropriate as making an unauthorised entry into the home of people he does not know. And in this case the only “cause” that has been shown is the loss of employment opportunities. The fact that the applicant has a home in which to live, and that strict bail conditions could be imposed, do not in themselves assist a “show cause” application. They do not constitute positive reasons why bail should be granted.
For these reasons, the application must be refused.
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