Re Gloury-Hyde (No 2)
[2018] VSC 520
•7 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0167
S CR 2018 0233
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Revocation of Bail in the matter of Zachariah Gloury-Hyde |
| and |
| IN THE MATTER of an Application for Bail by Zachariah Gloury-Hyde |
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JUDGE: | Priest JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 August & 7 September 2018 |
DATE OF JUDGMENT: | 7 September 2018 |
CASE MAY BE CITED AS: | Re Gloury-Hyde (No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 520 |
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CRIMINAL LAW – Bail – Application for revocation of bail – Applicant charged with Schedule 1 drug offences – Applicant established exceptional circumstances justifying grant of bail – Applicant breached a conduct condition of bail following release – Breach of conduct condition is a Schedule 2 offence – Need to show that a compelling reason exists justifying the grant of bail – Whether unacceptable risk of committing an offence while on bail – Application for revocation refused – Bail granted on charge of breaching a condition of bail – Bail Act 1977, s 3, s 3AAA, s 4, s 4A, s 4C, s 4E, s 5AAA, s 18, s 18AE, s 18AF, s 24(3), s 30A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Morrissey SC | Andrew Hale |
| For the Respondent | Mr R Pirrie | Mr John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
There are two applications before the Court. First, the Director of Public Prosecutions (‘DPP’) makes application under s 18AE of the Bail Act 1977 (‘the Act’) to revoke bail that I granted to Zachariah Gloury-Hyde (for convenience, ‘ZGH’) on 17 July 2018;[1] and, secondly, ZGH applies for bail on a charge laid under s 30A of the Act, relating to the contravention of a conduct condition of the bail earlier granted.
[1] Re Zachariah Gloury-Hyde [2018] VSC 393 (‘Bail reasons’).
For the reasons that follow, I will refuse the application for revocation of bail, and will grant bail on the charge under s 30A.
The applicant has been charged with a large number of drugs and other charges. I need not recite those charges, they are set out in my earlier reasons granting bail.[2] In order to secure bail on those charges, ZGH needed to show that exceptional circumstances existed justifying the grant of bail. Not without a deal of hesitation, I concluded that bail should be granted on strict conditions.
[2] Bail reasons, [3] and [6].
Once more, I need not recite in full the conduct conditions upon which I granted bail.[3] They are contained in my earlier reasons.[4]
[3]By virtue of s 3(1) of the Act, a conduct condition is a condition of bail imposed under s 5AAA(1).
[4] Ibid [38].
Among the conduct conditions that I imposed, however, were conditions that ZGH reside at the premises of the Hader Clinic, and ‘participate in The Hader Clinic 90-day residential treatment program as directed by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees, and follow all lawful instructions and directions of Mr Jackson Oppy and Dr Keflemeriam Yohannes or their nominees’.
Lawful instructions to which ZGH was subject whilst resident at the Hader Clinic, included that he not attend other patients’ rooms and that he not engage in sexual activity with another patient. It has not been disputed before me that, on 7 August 2018, ZGH engaged in sexual activity with a female patient in his room, and visited another male patient’s room. Once those failures by ZGH to abide by those lawful instructions were detected on 13 August 2018, a Hader Clinic representative immediately contacted the informant. As a result, police arrested ZGH on 14 August 2018, and charged him under s 30A with breaching a conduct condition of bail. That same day, the DPP filed an application with this Court under s 18AE of the Act to revoke bail.
When the application for revocation was first before me on 28 August 2018, Mr Oppy, as he had in the course of the earlier bail application on 13 July 2018, gave evidence. He told me that, save for the condition breaches referred to, ZGH had been ‘fully compliant’ with the program and had been proceeding satisfactorily through it, notwithstanding that he had some ‘cognitive challenges’. ZGH had been assigned the role of a ‘buddy’, and was thus a mentor to newcomers to the Hader Clinic. As he had previously informed the Court, Hader Clinic has ‘zero tolerance’ to breaches of its rules. ZGH’s breaches on 7 August of the relevant rules to which he was subject meant that it was mandatory that he be excluded from the program for 30 days. Although ZGH was guilty of a ‘serious lapse of judgment’, the Hader Clinic would willingly take him back at the conclusion of the mandatory 30 day exclusion period (on Wednesday, 12 September 2018).
Following his arrest on 14 August, a magistrate remanded ZGH in custody to appear on 21 August 2018; and on that date, a magistrate adjourned the charge under s 30A for mention to the Magistrates’ Court on 6 September 2018 (that is, yesterday’s date).
Given a confluence of matters — including the favourable attitude of Mr Oppy to ZGH’s return to the program, and the status of the charge under s 30A — and detecting from the co-operative attitude of the parties that, notwithstanding the DPP pressed the application for revocation, there was some potential for the resolution of relevant issues, I adjourned the further hearing of the application for revocation to today’s date. In the meantime, on 3 September 2018, ZGH’s solicitor filed an application for bail relating to the charge under s 30A.
I have been informed that when the charge under s 30A was before the Magistrates’ Court yesterday, the further hearing of the proceeding was adjourned to 27 November 2018, so as to coincide with the return of the drug and other charges to court.[5]
[5]The Magistrate also found proven, but dismissed, an unrelated charge of careless driving.
When I originally entertained ZGH’s application for bail, I received evidence from a variety of sources. I need not repeat that evidence. It is summarised in my earlier reasons.[6] I was most impressed by the evidence of Mr Oppy, and of Dr Keflemariam Yohannes and ZGH’s mother, Gabrielle Gloury.
[6] Ibid [11]–[21].
Moreover, I discussed the statutory regime, including the need for ZGH to show exceptional circumstances justifying the grant of bail, and the notion of unacceptable risk.[7] I found that exceptional circumstances — principally the nature and extent of the applicant’s acquired brain injury (and its consequences for his functioning), when taken with other factors such as the availability of treatment — established exceptional circumstances justifying a grant of bail.[8] I also concluded that any unacceptable risk of ZGH committing an offence while on bail was amenable to strict conditions.[9]
[7] Ibid [22]–[30].
[8] Ibid [35].
[9] Ibid [36]–[37].
As I have indicated, the application to revoke bail was made by the DPP under s 18AE. Although s 18AE(2) provides that an application under the section is to be made ‘to the court to which the person is required to surrender under his or her conditions of bail’, neither party questioned this Court’s power to deal with the application.[10] Section 18AF provides that on an application under s 18AE, the court may either revoke bail or dismiss the application, but the Act otherwise gives no guidance as to how the discretionary powers in the section are to be exercised.[11] That said, the Court must, of course, exercise the powers reserved to it under s 18AF by reference to the guiding principles in s 1B of the Act.
[10] See s 18AH(1) of the Act.
[11]That situation may be compared with that pertaining under s 24(3), which permits a court dealing with a person arrested without warrant for breach of a condition of bail to revoke the bail, and, depending on the circumstances, either remand the person in custody or release the person on his or her original undertaking or on a new undertaking.
So far as the present application for bail is concerned, any offence against the Act is a Schedule 2 offence.[12] By virtue of cl 3(a) of Schedule 1 of the Act, however, a Schedule 1 offence includes a Schedule 2 offence that is alleged to have been committed on bail for any Schedule 1 offence or Schedule 2 offence. That being so, by virtue of s 4A of the Act, the Court must refuse bail unless ZGH satisfies me ‘that exceptional circumstances exist that justify the grant of bail’. I am thus faced with the same situation as when I first granted bail, save that I must consider the matter afresh, apprised of the fact that ZGH did not abide by a conduct condition of the bail first imposed.
[12] See Schedule 2, cl 30.
Notwithstanding ZGH’s breach of a conduct condition of bail, I am satisfied that the exceptional circumstances which existed at the time I granted bail remain extant. Indeed, it may be — although I have no direct evidence of this — that the ‘serious lapse of judgment’ of which Mr Oppy spoke is linked to ZGH’s ‘cognitive challenges’.
Furthermore, I am confident that any relevant unacceptable risk is capable of amelioration by the imposition of the kind of strict conditions that the Court attached to the original grant of bail. Indeed, so much has been eloquently borne out by the Hader Clinic’s demonstrated ‘zero tolerance’ to ZGH’s failure to abide by the Clinic’s rules, resulting in the immediate action taken by the Clinic to notify the informant of ZGH’s failure. As I said when granting bail, the ‘centrepiece’ of the application for bail was the proposal that ZGH reside at the Hader Clinic under a 90 day residential rehabilitation program, during which he would be monitored and the police immediately be notified of any breach of bail conditions.[13] Indeed, my confidence in the effectiveness of the conditions to make any relevant risk acceptable has been buoyed by the action that the Clinic took.
[13] Bail reasons, [20].
For those reasons, despite ZGH’s breach of a conduct condition, I do not consider that it is appropriate to revoke bail. And essentially for those reasons, I consider that it is appropriate to grant ZGH bail on the charge under s 30A.
It is regrettable that ZGH did not abide by the conditions of bail that this Court originally imposed. He has disappointed a number of people as a result, and has created a deal of unnecessary work for the informant, the DPP and this Court. But, apart from the breach which has brought ZGH back before the Court, the exceptional circumstances which originally existed still exist, and the framework of conditions imposed has demonstrated its efficacy. For those reasons, not only should the bail originally imposed be permitted to continue, but I would grant bail on the s 30A charge on the same conditions as those imposed on 17 July 2018 (save that conditions 1 and 5 will need to be appropriately adapted) .
The application for bail is granted on the applicant’s own undertaking, with special conditions that the applicant:
1. no later than 4.00 pm on 7 September 2018 present himself to Mr Jackson Oppy or his nominee at The Hader Clinic, 6 Townsend Road, St Albans Park, for admission as an in-patient into the residential treatment program;
2. reside at the premises of The Hader Clinic, 6 Townsend Road, St Albans Park, and not change place of residence without an order of a court first obtained;
3. participate in The Hader Clinic 90-day residential treatment program as directed by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees, and follow all lawful instructions and directions of Mr Jackson Oppy and Dr Keflemeriam Yohannes or their nominees;
4. comply with each of the following requirements:
(i)undergo such urine drug screens as directed by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
(ii)not leave the premises of The Hader Clinic, 6 Townsend Road, St Albans Park, unless for a purpose authorised by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
(iii)at all times if absent from The Hader Clinic, 6 Townsend Road, St Albans Park, be in the company of Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
(iv) receive only such visitors as are approved by Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees;
5. appear before the Magistrates’ Court of Victoria on 27 November 2018;
6. not have a mobile telephone without the permission of Mr Jackson Oppy or Dr Keflemeriam Yohannes or their nominees, and if and when permitted to have a mobile telephone while a resident The Hader Clinic, 6 Townsend Road, St Albans Park:
(i) have no more than one mobile telephone, the number of which is to be supplied to the Informant within 24 hours of obtaining same;
(ii) the mobile telephone service must be subscribed in the applicant’s name and with his current address.
7. not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, or consume alcohol, except with the permission or on the advice of a legally qualified medical practitioner;
8. forthwith surrender any valid passport to the Informant and not apply for or possess any other passport or travel document;
9. not attend any point of international departure;
10. not leave Victoria;
11. upon commencement of the Hader Transitional Housing Program (‘THP’) notify the Informant or his nominee within 24 hours of the proposed residential address;
12. upon commencement of the Hader THP, unless under the supervision or with the permission of an authorised representative of The Hader Clinic, not leave the place of residence between 11.00pm and 6.00am, and on the request of police to present himself at the entry of the residence during the hours of curfew;
13. upon commencement of the Hader THP report to the nearest 24 hour police station every Monday, Wednesday and Friday between the hours of 6.00am and 9.00pm;
14. not contact April Acciarito, Raymond Khauri or Cathy Truong, directly or indirectly, whether personally, by telephone, email, social media or other means;
15. not contact or approach any witness for the prosecution other than the Informant.
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