Re Gelb

[2007] VSC 39

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1427 of 2007

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by JEROME GELB

---

JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2007
DATE OF JUDGMENT:	16 February 2007
CASE MAY BE CITED AS:	Re Jerome Gelb
MEDIUM NEUTRAL CITATION:	[2007] VSC 39

---

CRIMINAL LAW – Application for bail –– Onus on Crown to establish unacceptable risk - Bail granted with conditions - Bail Act 1977 s 4(2)(d).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Dunn QC	Galbally & O’Bryan
For the Respondent	Mr R. A. Elston SC	OPP

HIS HONOUR:

1. On 1 February 2007 Jerome Gelb, a registered medical practitioner who practised as a psychiatrist, was detected at the entrance to the Melbourne Magistrates' Court in possession of a loaded .22 calibre pistol and a quantity of ammunition.  The gun and ammunition were in a backpack presented for X-ray examination at the security post at the entrance to the court.

1. Dr Gelb was apparently at the Melbourne Magistrates' Court on the return of an ex parte intervention order which he had earlier obtained against his ex-wife.  According to evidence before this court he was running late, had missed an appointment with his counsel and proceeded straight to the court where he arrived about 10 minutes late for a callover of cases of which his was one.

1. The explanation he proffers now for having the gun in his possession is that he forgot that it and the ammunition were in his bag as he voluntarily handed it over for examination.  It was otherwise when he was apprehended by police subsequently.  Initially he told them that he had brought the gun to court as an exhibit.  This might have been not inconsistent with his later telling police that it had been thrown over his fence as a threat upon his life.  It is, however, inconsistent with his position as stated to police in an interview after his arrest that he had obtained the gun from a known criminal who is currently in gaol for his own protection.

1. Dr Gelb had the pistol confiscated by personnel at the X-ray machine but was allowed to proceed to the court where his case was to be called over.  He waited there for some time in the vicinity of his ex-wife who was there as the respondent to the intervention order.  Eventually he was arrested by police who also executed a search warrant at his Armadale home.  In due course he was charged with an offence under the Court Security Act 1980 of bringing a firearm onto court premises without lawful excuse with respect to the pistol, and a number of other offences arising from the police having found weapons and other items at his home.  These items included a sling shot, a shotgun, a spear gun and ammunition.  The home itself was protected by extensive security equipment.

1. Following his arrest and interview Dr Gelb was charged with a number of offences and remanded in custody.  A subsequent bail application before the Melbourne Magistrates' Court was unsuccessful.  He has accordingly now been in custody for some 14 days and applies to this Court for bail pending a committal mention hearing due in late April at the Melbourne Magistrates' Court, the offence under the Court Security Act being an indictable offence.

1. Dr Gelb is entitled to bail on each of the charges filed against him unless the Crown can establish a disqualifying factor to the Court's satisfaction, so

   
   

   as to disentitle him to the presumption that a person charged is entitled to be at large pending the determination of that charge.

1. Here the Crown relies upon two disqualifying factors, namely that Dr Gelb poses an unacceptable risk of committing offences if released on bail, and that there would be an unacceptable risk that he would endanger the safety or welfare of members of the public if he were so released.  In this instance these objections can be summarised as a fear by the law enforcement authorities that his being at large poses an unacceptable risk of danger to the public, the onus of establishing which risk is of course on the Crown.

1. Mr Elston argues that the circumstances in which Dr Gelb was arrested lead to an inference that he was at the Melbourne Magistrates' Court with an intention to cause harm to his ex-wife, Sharon Guy.  However, despite a history of post-matrimonial conflict between Dr Gelb and his ex-wife, there is no evidence or even suggestion of his ever having harmed her in the past, or having ever having threatened to do so, either to her personally or to any other person.  On the contrary it is Dr Gelb who has made numerous complaints against his ex-wife, including to senior police officers, and going as far as seeking an intervention order against her.

1. His family law solicitor has deposed to his having avoided confrontation with his ex-wife and of his having conducted his matrimonial affairs in an appropriate manner using professional channels.

1. It would seem likely that, for good reason or not, Dr Gelb has a fear of his ex-wife which has led him to engage in bizarre behaviour, including fortifying his home and carrying a weapon, which there is no evidence of his ever having used or threatened to use against his ex-wife or anyone else.

1. Mr Dunn of Queen’s Counsel for Dr Gelb submitted that Dr Gelb's now explanation for taking the gun into the Magistrates' Court must be correct.  That is, that he forgot it was in his backpack.  The machine at which he presented his pack was there to detect the very thing he was carrying.

1. It would be stretching credibility to believe, says Mr Dunn, that Dr Gelb thought that he could get it through such a security system.  He is an intelligent man used to airports and courts, and accordingly familiar with the form of detection device which detected his weapon.

1. Psychiatric assessments of Dr Gelb by Professor Singh in August 2006 for a purpose not connected with this case, and by Dr Lester Walton, a forensic psychiatrist, on two occasions this month, concur that apart from a mild anxiety for which Dr Gelb takes no medication, his mental state is completely normal.

1. Despite the lay opinion of a police officer that Dr Gelb was paranoid, Dr Walton in particular found no clinical signs of paranoia.  In his oral evidence before this court Dr Walton confirmed a lengthy report on Dr Gelb in which he concluded that there are no obvious psychiatric contra-indications to his being released on bail.

1. Dr Walton went further and offered to provide regular psychiatric supervision of Dr Gelb if he was released on bail and accepted a condition that if he found anything untoward in any further consultation with Dr Gelb he would report it to the appropriate authorities.

1. In all the circumstances I am not satisfied that the Crown has discharged the onus of demonstrating that Dr Gelb poses an unacceptable risk of committing further offences or harming any other person if he is released on bail.  However such bail must be subject to a number of stringent conditions to reinforce the seriousness of the charge against Dr Gelb, and to ensure as far as possible that the means of his committing any further offence are put beyond his reach.

---