Robinson v The Queen
[2015] VSCA 161
•12 March 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0032
| JAMIE LEE ROBINSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 March 2015 |
| DATE OF ORDER: | 12 March 2015 |
| DATE OF REASONS: | 26 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 161 |
| JUDGMENT APPEALED FROM: | [2015] VSC 5 (J Forrest J) |
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CRIMINAL LAW – Bail – Drug trafficking charges – Applicant required to ‘show cause’ – Whether detention justified – Whether unacceptable risk – Whether ‘one-step’ or ‘two-step’ process of consideration – Strict bail conditions proposed – Residential drug treatment condition – Severe restrictions on movement and association – Whether compliance would reduce risk to acceptable level – Appeal allowed – Bail granted on conditions – Bail Act 1977 s 4(4).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Fox | Garde Wilson Lawyers |
| For the Queen | Mr P B Kidd SC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
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MAXWELL P
REDLICH JA:
Summary
The applicant (R) has been charged with a number of offences, including trafficking, and conspiracy to traffick, a drug of dependence. He applied for bail, both in the Magistrates’ Court and in the Trial Division of this Court. Both applications were refused.
Because R is charged with drug trafficking offences, the application for bail is governed by s 4(4) of the Bail Act 1977 (‘the Act’), which provides that in such a case
the Court shall refuse bail unless the accused shows cause why his detention in custody is not justified …
As the judge recognised, the question for determination was whether R had satisfied the Court that his detention in custody was not justified. His Honour concluded that he was not so satisfied and that, accordingly, bail must be refused. Central to his Honour’s decision was the conclusion that to release R on bail would carry an unacceptable risk that he would commit an offence whilst on bail and would interfere with witnesses prior to the trial.
R sought leave to appeal from that decision. The grounds of appeal challenged both his Honour’s approach to the application of s 4(4) and his conclusion as to unacceptable risk. As will appear, since 2005 there have been two lines of authority in the Trial Division concerning the proper construction of s 4(4). The grounds of appeal invited the Court to decide which construction was correct. In the event, it proved unnecessary for the resolution of the appeal to determine that question. We would have reached the same conclusion on either construction.
Having regard to the unusually stringent bail conditions proposed, we concluded that R had discharged the onus imposed on him by s 4(4) and that the contrary conclusion was not open. Accordingly, we granted leave to appeal, allowed the appeal and admitted R to bail on strict conditions.
We said we would publish our reasons subsequently. These are those reasons.
Background circumstances
On 11 September 2014, R was charged with 11 offences and remanded in custody. The charges comprised:
·two charges of trafficking, and three charges of conspiracy to traffick, methylamphetamine between 11 July and 11 September 2014;
·one charge of aggravated burglary; and
·one charge each of intentionally causing injury, recklessly causing injury, possessing methylamphetamine, dealing with proceeds of crime and possessing a prohibited weapon.
On 4 December 2014, R was refused bail by the Magistrates’ Court at Wangaratta. On 13 January 2015, he made a fresh application before a judge of the Trial Division. On 19 January 2015, that application was refused, with reasons.[1]
[1]Robinson v The Queen [2015] VSC 5 (‘Reasons’).
In his reasons, the judge summarised the parties’ contentions as follows:
[R] relies upon four matters in support of his submission that his detention is not justified.
The first and primary factor is that there will be a substantial delay, in the vicinity of two years, between the time of his arrest and that of his trial.
Second, if granted bail, [R] will reside at a rehabilitation facility known as Recoveroz in Box Hill, where he will undergo supervised in-house drug treatment (the program). At the hearing, Mr Francis Coughlan of Recoveroz gave evidence of the manner in which the organisation operates, which I shall return to in a moment.
Third, [R] has strong family support and ties in Victoria and fourth, his parents are willing to provide a surety of $50,000.
The respondent opposes the grant of bail on the following bases:
(a) that [R] is likely to intimidate and interfere with witnesses and victims;
(b) that he is likely to continue re-offending within a network of criminal associates located within the Wangaratta area; and
(c) that he is likely to associate with co-accused located within the Wangaratta area for the purpose of collecting drug debts.
To this it may be added that [R] has an extensive, if relatively minor criminal history (including several failures to obey orders of a court) and, notwithstanding his incarceration, there is evidence that [R] has expressed a desire to participate in unlawful activities in the event that he is granted bail.[2]
[2]Ibid [6]–[11].
R is 29 years of age and prior to his arrest lived in Wangaratta. He is a qualified plasterer. In 2009, he injured his back in a work accident, as a result of which he has undergone major surgery and continues to experience back pain. He has not worked since that accident. For some time he was in receipt of WorkCover benefits. His common law claim was, apparently, settled for $85,000 last year.
Although there is no medical evidence concerning the issue, it appears, at least by reason of his prior convictions and his statements to Mr Coughlan, that R has a history of drug addiction, including in recent years an addiction to ice. His parents reside in Wangaratta and maintain regular contact with him.
R has two daughters, one of whom is eight months old. R has been the subject of apprehended violence orders in New South Wales requiring him to stay away from the mother of the two children. He remains subject to an order made on 20 November 2013.
As the judge noted, R does not have a serious criminal past, but he does have a history of contravening court orders and committing offences involving drugs. In June 2006, he was convicted of breaching an intervention order in Victoria. Two months later, he was convicted of possessing cannabis and driving whilst disqualified. R was again convicted of drug related charges concerning cannabis and amphetamines in September 2009, March 2011 and January 2014 respectively.
R also has a criminal history in New South Wales. In November 2012, he was convicted of drug-related charges. In October 2013, he was convicted of stalking in a domestic situation, for which he received a 12 month suspended sentence. R was also convicted of ‘motor vehicle menaces with intent’ and contravening an apprehended violence order. In November and December 2013, he was again convicted of drug related charges and a further breach of his apprehended violence order. In March 2014, R again breached his apprehended violence order, for which he was sentenced to two months’ imprisonment.
The circumstances of the offending
The charges against R arose from an operation conducted by Victoria Police into the trafficking of illicit drugs, particularly ice, by a group operating in the north-east of Victoria and particularly in and around Wangaratta.
The judge described R’s conduct in these terms:
Although the current charges relate to offences committed between 11 July 2014 and 11 September 2014, the telephone intercept of conversations between [R] and several of his co-accused (particularly one [JF]), indicate that [R] has at least, since early 2014, been intimately involved in the activities of the group which, it is alleged, was operated by [JF] and a [JS]. If accepted as accurate, the intercepts demonstrate that [R] regularly assisted [JF] as a ‘standover man’ in relation to the collection of drug debts.
There are a number of disturbing aspects of [R]’s conduct disclosed in the remand summary. First, [R] is prepared to resort to violence in pursuing the recovery of monies owing from drug deals. He is alleged to have committed an aggravated burglary in pursuit of drug debts, which included at least one assault of a person (previously owing monies to [JF]) in the course of a home invasion.
On several occasions, [R] has been recorded discussing with [JF] the recovery of monies owing to her from drug deals. For instance, on 3 June 2014, in a conversation with [JF], [R] said:
People rip you like they do, I hate it. Do you want me to do a few run ins. Fuck, I’ll be at your feet when you need help.
And, on 25 August 2014, in a conversation with [JF] in relation to a drug debt, he said of his method of enforcement:
He realises now, in what I’m meaning, pay up. He cried and yelled ‘my back, my back’ because I dragged him by the car with half his body caught in the window until I stopped and strangled him until he near passed out.
Three days later in an intercepted conversation on 28 August 2014, [R] told [JF] that a customer owed him a drug debt and that he had people coming to enforce it prior to Christmas.
When [R] was arrested on 11 September 2014, he was in possession of three grams of ice as well as over $4,000 in cash and two credit cards belonging to ‘customers’.
Secondly, the intercepted communications also demonstrate that [R] was aware that in carrying out his activities on behalf of [JF] he was in breach of a bail curfew. [3]
[3]Ibid [25]–[31].
Delay
Before the judge, R placed particular emphasis on the expected delay before his case would be ready for trial. His Honour noted that the police operation had produced in excess of 30,000 telephone communications, with approximately 6,000 pages of transcript. The surveillance material, unedited, exceeds 1,000 hours. There are an additional 100,000 mobile telephone communications which require analysis and over 100 statements have been taken.
His Honour accepted the contention of counsel for R that it was likely that, unless R changed his plea, his case would not be heard until late 2016. The practical end result, his Honour said was that R would spend two years in custody prior to the trial. That finding was not challenged in this Court.
The proposed bail conditions
As noted earlier, the submission for R before his Honour was that, if granted bail, he would reside at a rehabilitation facility known as Recoveroz in Box Hill. He would there undergo supervised in-house drug treatment. It was said on his behalf that stringent bail conditions restricting him to residence at Recoveroz, a long distance from Wangaratta, would reduce the likelihood of him committing an offence whilst on bail.
His Honour accepted that a relevant consideration in assessing the risk of reoffending was
a condition concerning the residence of [R] away from Wangaratta and what steps he might take to reduce or eliminate his drug addiction which, presumably, fuels his need for money.[4]
[4]Ibid [45].
Mr Coughlan gave evidence before his Honour as to the operation of the Recoveroz facility. He said that R was a suitable candidate for the program and provided the Court with a list of conditions that would apply to R’s admission to the program. The proposed conditions included that R:
(a) be subjected to random drug screenings twice a week;
(b) for the first month of the program, be required to be in the company of an authorised person at all times;
(c) not contact friends or family for the first 28 days following his admission; and
(d) be subjected to a night curfew.
Mr Coughlan emphasised that, if R breached any of the conditions or became unsuitable for the program, he would notify the informant immediately. Mr Coughlan recommended that R be placed in the program for 12 months. His Honour asked Mr Coughlan to comment on the risk that, after 12 months, R might return to Wangaratta (assuming he did not abscond during the program) and reunite with his criminal associates there. Mr Coughlan acknowledged that possibility, saying:
We do the best we can to provide options for all of our clients to take advantage of the program and stay clean. It’s a matter of teaching the client that there is another way of doing things, instead of recourse to old behaviour which is going back to drug use all the time …
His Honour said he had a number of reservations concerning the proposed arrangements as follows:
First is the artificiality of the arrangement with Recoveroz. The organisation was engaged by [R]’s lawyers. [R] himself has shown no inclination whatsoever in the past, of his own volition, to seek assistance in rehabilitation. His only other attendance at a rehabilitation service was as a result of a court order in New South Wales when he was required to attend Odyssey House at Wagga Wagga. Whilst it was submitted by counsel for [R] that third party intervention was the norm in relation to rehabilitation, I take a different view. I think it speaks volumes for [R]’s lack of genuine interest in rehabilitation that the only stimulus is the prospect of incarceration. As I will explain in a moment, I do not believe that [R] has any genuine interest in rehabilitation.
Second, the evidence as to the assessment of [R] by the Recoveroz personnel is scant. Mr Coughlan and Mr Thompson, his colleague who provided a report concerning [R], simply rely upon [R]’s account as to his willingness to engage in the rehabilitation process. They had no access to material from Odyssey House or any other relevant material from [R]’s treating general practitioner in Wangaratta.
Third, I am by no means satisfied that removal from Wangaratta will help [R] attempt genuine rehabilitation or inhibit him from committing an offence. In a letter written by [R] when in custody only a few months ago to [CO], a co-accused, he wrote:
DALTS,
HOW IS IT OVER IN C YARD YA MONYANG I’LL BE OVER AS SOON AS I’M ALOUD CUNT, WELL AT LEAST YOU’VE GOT YA BESTIE NOW LOL. HEY GO FOR BAIL ON 19TH OF THIS MONTH BRO AND HOPEFULLY WE BOTH GET RELEASED AND GET SHIT GOING TOGETHER UNO AS UNO AS MY LAWYERS BILL WILL BE $30,000 WELL FUCK ME BROTHER FROM ANOTHER MOTHER.
CANT WAIT TO GET OUT BRO IM OVER THIS JAIL EVEN KNOW THE PULL I’VE GOT ‘LMAO’ FIG JAM. AT LEAST YOU HAVE YOUR CAR BACK BRO FUCK THE COPS THEY HAVE NOTHING ON US THE RAT DOES.
HOWS YA LITTLE ONE GOING. SHE’S BE BIG NOW HAVE YOU SEEN HER MUCH. HEY I’M MOVING TOO MELBOURNE YOU SHOULD DO SO YA SELF OR YOU TOO SCARED FUCK IF SO YOU HAVNT CHANGED THEN LOL. LOL ANYWAY LOOSE LIPS SINKS SHIPS SO DON’T FUCKING SAY A THING LOL WILL STAY MATES THEN [sic].
Moreover, [R]’s history in relation to obeying court orders is disheartening. He has been convicted on three occasions for breaching the New South Wales apprehended violence orders — on the last occasion, he was sentenced to two months imprisonment.
In summary, I am not satisfied that simply removing [R] from the scene of his alleged wrongdoing and requiring him to attend Recoveroz will sufficiently reduce the risk of him committing an offence whilst on bail to the point where it is acceptable. Nor do I think that the provision of a surety will ameliorate this concern.[5]
[5]Ibid [49]–[53].
Those concerns led his Honour to conclude that there was an unacceptable risk of interference with witnesses:
For the reasons I advanced under the previous point, I am not convinced that this risk is obviated by a bail condition requiring [R] to live in Melbourne or to participate in the Recoveroz program. On the basis of the telephone intercepts, [R] has shown a willingness to deal violently with others, and particularly those involved in the purchase of drugs, which will inevitably include a number of the co-accused and witnesses.
Moreover it is clear from the letter to [CO] that [R] intends to remain in contact with at least one of his co-accused.
There are many, many witnesses in this case, and I think an unacceptable risk remains (whatever the stringency of bail conditions) of interference with potential witnesses prior to the trial.[6]
[6]Ibid [54]–[56].
The approach to s 4(4)
As noted earlier, the drug trafficking charges attracted the operation of s 4(4) of the Act, which required R to show cause why his detention in custody was not justified. For almost a decade, there has been a divergence of views in the Trial Division about the correct approach to resolving questions of bail where s 4(4) applies. As far as we are aware, this is the first occasion on which the question has been raised on an appeal to this Court. That tends to confirm — as is indicated by the first instance decisions and the outcome of the present appeal — that the debate over the interpretation of s 4(4) will rarely be of practical significance, as the application of either approach will produce the same outcome.
The first line of authority begins with the decision of Gillard J in Director of Public Prosecutions v Harika.[7] In that case, the applicant for bail had been charged with armed robbery. Section 4(4)(c) was therefore applicable, and the applicant had to ‘show cause’ why his detention in custody was not justified. Gillard J said:
Any person accused of an offence is entitled to bail. That is the general rule laid down by s 4(1) of the Act. However, in some circumstances, the right to bail is abrogated and instead, the applicant must prove to the satisfaction of a Judge of this Court ‘why his detention in custody is not justified’. See s 4(4). The applicant for bail has the burden of proving that his detention in custody is not justified.
However, that is not the end of the inquiry. If he establishes cause, the Court shall refuse bail if it is satisfied there is an unacceptable risk that if the applicant is released on bail, he may commit one or more of the prohibited acts set out in s 4(2)(d). ... The factors that must be weighed in considering the question of unacceptable risk are set out in s 4(3). It is noted that the Court must consider all relevant matters, and the list of specified ones is not exhaustive ...
The burden of establishing unacceptable risk lies upon the Crown.
The two inquiries can overlap, in the sense that the unacceptable risk factors have to be weighed, when considering whether the applicant for bail has shown cause.
The Act does not define what is meant by the phrase ‘shows cause why his detention in custody is not justified’. It is trite to observe that all relevant circumstances must be weighed, leading to the conclusion that the detention in custody is not justified.[8]
[7][2001] VSC 237 (‘Harika’).
[8]Ibid [44]–[47] (emphasis added). Gillard J reaffirmed this analysis in Re Application for bail by Paterson (2006) 163 A Crim R 122, and it was endorsed by Bell J in Woods v DPP [2014] VSC 1 (‘Woods’): see [43] below.
The second line of authority begins with the decision of Maxwell P in ReAsmar.[9] In that case, relying on Harika, the Director had submitted that s 4(4) involved
a two-step process which requires the Court to consider the respective burdens imposed by the two subsections [s 4(4) and s 4(2)(d)].[10]
In that process, so it was said, the applicant for bail must first ‘show cause why his detention in custody is not justified’. That was the first step. Once cause was shown, the Court would move to the second step, that is, to decide whether there was unacceptable risk as defined by s 4(2)(d). On that issue, the prosecution bore the onus.
[9][2005] VSC 487 (‘Asmar’).
[10]Ibid [9].
Maxwell P rejected that submission, holding that s 4(4) exhaustively governed applications for bail to which it applied. In his Honour’s view, the consideration of the bail application involved one step, not two:
In my view, the question — the only question — for the Court on an application to which s 4(4) applies is:
Has [R] shown cause why his/her detention in custody is not justified?
Put another way, the question is whether the applicant satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step.
This does not mean that the ‘unacceptable risk’ issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.[11]
[11]Ibid [11]–[12] (emphasis added). As the Director’s appeal submission pointed out, the decision in Asmar has been widely followed by judges of the Trial Division: see n 68 below and the cases there cited.
In the present case, the first ground of appeal was that the judge, while purporting to follow the ‘one-step’ approach to s 4(4) described in Asmar, had in fact incorrectly applied a two-step approach. In the alternative, the applicant contended that the Asmar approach was wrong and that the correct interpretation of s 4(4) required a two-step process of consideration.
As mentioned earlier, it was unnecessary to address either of those grounds of appeal in order to dispose of the appeal. We would have reached the same conclusion on the merits of the appeal whichever interpretation was adopted. As is clear from the extracts from Harika and Asmar set out above, on either approach the judge must consider whether a grant of bail would create ‘unacceptable risk’ of one or more kinds.[12]
[12]As Maxwell P commented in Asmar (at [16]), there is little practical difference between the two approaches. The experience of judges of the Trial Division in the period since Asmar was decided confirms that to be so: see Watts v Director of Public Prosecutions [2007] VSC 275 [5] (Bongiorno J); ReKylie Vickers [2009] VSC 202, [7] (Cavanough J); R v Chafer-Smith [2014] VSC 51, [24] (T Forrest J). See also R v Ebrahimi [2015] NSWSC 335, [9]–[11].
This question only arises because the Act contains reverse onus provisions like s 4(4). As will appear, we would endorse the view of the Victorian Law Reform Commission that the administration of bail law in Victoria would be greatly enhanced, without weakening its stringency, if the reverse onus provisions were replaced by a single test for bail based on unacceptable risk.[13]
[13]Victorian Law Reform Commission, Review of the Bail Act 1997, Final Report No 13 (2007).
The structure of the Act
The essential structure of pt 2 of the Act (concerned with the granting of bail) is relatively simple. Section 4(1) gives any person ‘accused of an offence and being held in custody’ an entitlement to bail (relevantly) ‘whilst he is awaiting trial’.[14] What gives rise to the present complexity is that the statutory entitlement to bail is then qualified by various provisions which oblige the court to refuse bail in specified circumstances. (We will refer to the provisions which require bail to be refused as ‘exclusionary provisions’).
[14]Sentencing Act 1991 s 4(1)(b).
As will appear, there are three types of exclusionary provisions. They respectively require bail to be refused:
(b) unless ‘exceptional circumstances’ are shown to exist;
(c) if ‘unacceptable risk’ is demonstrated; and
(d) unless the applicant for bail ‘shows cause’ why his/her continued detention in custody ‘is not justified’.
The first and last of these provisions create a presumption against the grant of bail, which it is for the applicant to displace.
The first type of exclusionary provision is exemplified by s 4(2)(a) (dealing with treason and murder) and s 4(2)(aa) (dealing with specified serious drug offences). If the applicant for bail is charged with any of these offences, bail must be refused unless the court
is satisfied that exceptional circumstances exist which justify the grant of bail.[15]
[15]Ibid ss 4(2)(aa), 13.
The second type of exclusionary provision is exemplified by s 4(2)(d), which obliges the court to refuse bail if satisfied:
that there is an unacceptable risk that the accused if released on bail would—
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 whether in relation to himself or any other person.
Under this provision, the prosecution bears the onus of establishing unacceptable risk. Unlike the other two types of exclusionary provisions, the application of s 4(2)(d) is independent of the nature of the charge(s) which the applicant for bail is facing.
The third type of exclusionary provision is exemplified by s 4(4), which provides:
Where the accused is charged with [an offence specified in this sub-section] the court shall refuse bail unless the accused shows cause why his detention in custody is not justified …
This provision was part of the Act as originally enacted in 1977. At that time, there was only one category of offence which triggered its application, that being the category defined — then as now — by s 4(4)(c). New categories have been added on a number of occasions since, and there are now a large number, including stalking, family violence, arson and drug offences.
The language of s 4(4) is different from that used in the other exclusionary provisions. As already noted, the language used in s 4(2)(a) and in s 4(2)(aa) is that bail must be refused
unless the court is satisfied that exceptional circumstances exist which justify the grant of bail.
Those provisions require a refusal of bail unless a condition is satisfied.
The form of s 4(2)(d) is different again. Under that provision, bail will only be refused if a condition is satisfied, namely, an ‘unacceptable risk’ condition. Plainly enough, it is for the party opposing bail to persuade the court that one or more of the unacceptable risk conditions is satisfied.
Under s 4(4), by contrast, bail must be refused unless the applicant ‘shows cause why his detention in custody is not justified’. This provision directs attention to whether detention is justified, whereas the ‘exceptional circumstances’ provision direct attention to whether bail is justified. The legal onus of showing that detention is not justified is imposed on the applicant.
Each of the three exclusionary provisions thus has its own distinctive language and form. Each specifies in its own terms the condition which must be met if bail is to be granted — or refused, as the case may be — in the cases to which it applies. And each is, on its face, capable of operation independently of the others.
As we have already pointed out, the judge hearing a bail application under s 4(4) will be bound to address issues of unacceptable risk, whether the ‘one-step’ or ‘two-step’ approach is adopted. In a case where the prosecution asserts that one of the contemplated risks exist, and the accused is obliged to show cause why his/her detention in custody is not justified, there will be a single inquiry into risk.
At the heart of the debate is the question of onus. Under s 4(2)(d), as noted earlier, the burden of showing unacceptable risk rests with the prosecution. As Bell J pointed out recently in Woods v Director of Public Prosecutions,[16] to treat s 4(4) as self-contained and as imposing the legal onus wholly on the applicant for bail, appears to reverse the onus of proof in relation to risk. His Honour concluded that the two-step approach in Harika was to be preferred, as being ‘more consistent with the presumption of innocence and the prosecutorial onus of proof’. What was said to be ‘a troubling feature’ of the Asmar interpretation was that
as regards unacceptable risk, it reverses the onus of proof. It effectively transfers that onus from the prosecution (who would normally carry it, as with the prosecutorial onus generally) to the applicant (who would normally not, consistently with the presumption of innocence). Having regard to the negative and evaluative nature of the test, this is surprising, for it is very difficult for someone to prove a negative, even more difficult for someone to prove that he or she does not offend a standard expressed in terms of risk and more difficult again when the standard is expressed in terms of unacceptable risk, especially because the relevant information will almost always be in the possession, or mostly in the possession, of the police.[17]
[16][2014] VSC 1.
[17]Ibid [56].
There is, moreover, a clear line of authority in this Court that the other reverse onus provision in the Act — which requires the applicant to establish ‘exceptional circumstances’ — is to be approached on a two-step basis. In Dale v Director of Public Prosecutions,[18] the applicant was charged with murder. Section 4(2)(a) thus required the court to refuse bail unless satisfied that exceptional circumstances existed which justified the grant of bail.
[18]Dale v DPP [2009] VSCA 212 (Maxwell P, Nettle JA and Lasry AJA) (‘Dale’).
On appeal against the refusal of bail, the Court made clear that, when dealing with the conflicting issues of exceptional circumstances and unacceptable risk, a two stage inquiry was appropriate:
In this case the appellant contends that Byrne J erred by imposing on him the onus of demonstrating that he would not be an unacceptable risk if released on bail. In our view, that contention — which was but formally opposed by the Director — should be upheld.
The Director’s written submission suggested that, by analogy with decisions on the ‘show cause’ provisions of s 4(4) of the Bail Act 1977 (Vic), the questions of ‘exceptional circumstances’ and ‘unacceptable risk’ should be approached in a one-step, rather than a two-step, process. At the commencement of the hearing, we ruled that this contention could not be entertained by a three-member bench. As recently as March this year, this court affirmed the long-accepted view that the process has two stages, with the prosecutor carrying the onus on the second stage concerning unacceptable risk. As this Court said in Barbaro v Commonwealth Director of Public Prosecutions:[19]
Even if the applicant for bail satisfies the court that exceptional circumstances exist which justify bail, bail must nevertheless be refused if the prosecution establishes unacceptable risk.
If it is to be contended that there is an unacceptable risk of the kind identified in s 4(2)(d) of the Bail Act 1977 (Vic), the Crown bears the burden of establishing the existence of such risk. Thus, if an applicant adduces evidence of exceptional circumstances and the Crown does not adduce evidence of, or otherwise demonstrate that there is, a significant risk, the application may be granted if the Court judges that the exceptional circumstances justify the grant of bail. Conversely, where (as here) the Crown does adduce evidence of, or otherwise demonstrate that there is, a significant risk, the Court must decide whether the risk is unacceptable. Put another way, the Court must decide whether, having regard to that risk, the circumstances are sufficiently exceptional to warrant the grant of bail.
In this case, the judge erred by proceeding on the basis that the applicant bore the persuasive burden of establishing that there was not an unacceptable risk.[20]
[19](2009) 20 VR 717 (Maxwell P, Vincent and Kellam JJA).
[20]Ibid 724, 725 [26]–[29] (emphasis added).
It seems desirable, therefore, that if the question of the correct construction of s 4(4) is to be resolved, it should await consideration by a five member bench of this Court, at which time the cognate question under s 4(2)(a) can also be considered. In the meantime, there is every reason to be confident that, barring some unusual circumstance, bail decisions under s 4(4) can continue to be made without the question of construction creating any difficulty.
Finally, we would draw attention to — and endorse — the recommendation of the Victorian Law Reform Commission, in its 2007 Report entitled Review of the Bail Act 1997, that the reverse onus tests should be removed altogether. This reform would greatly simplify Victorian bail law, without weakening it in any way. The Commission’s reasoning is compelling:
We recommend the removal of reverse onus tests so all bail decisions are made on the basis of unacceptable risk. We do not believe this will alter the outcome of bail decisions because decision makers have told us unacceptable risk is always the ultimate test. Reverse onuses apply to a small number of offences, many of which do not commonly come before the court. They include: murder and treason; arson causing death; serious drug offences; a violent breach of a family violence or stalking order by a person with a history of violence; aggravated burglary; and indictable offences where a weapon is used.
The commission believes decision makers will continue to treat seriously bail applications for offences that currently attract a reverse onus. There is no suggestion that applications for offences not currently included in the reverse onus categories are treated lightly.
…
A common criticism of the current Act is that the inclusion of offences in the reverse onus categories is ad hoc. Most serious violence offences are not included, such as attempted murder, rape or serious assault. The same arguments are canvassed in bail applications that do not involve a reverse onus, and the ultimate issue for the decision maker is whether the accused person poses an unacceptable risk. This simplified approach should apply to all offences.[21]
[21]Victorian Law Reform Commission, Review of the Bail Act 1997, Final Report No 13 (2007) 7, see also 54.
As noted earlier, the judge concluded that R represented an unacceptable risk if released on bail, notwithstanding the proposed bail conditions. We turn to explain why, in our view, those conditions obliged his Honour to come to the opposite conclusion.
Bail conditions and unacceptable risk
It is well established that a risk which might otherwise be unacceptable can be made acceptable by attaching appropriate conditions to the grant of bail.[22] It is also well established that delay before trial is an important consideration to be weighed in the balance.[23] In the present case, the applicant submitted that strict conditions requiring him to be — and remain — in a residential drug rehabilitation facility should have satisfied the Court that any risk of the kind contended for by the Crown would be reduced to an acceptable level.
[22]See, eg, DPP v Ghiller [2000] VSC 435 [48]–[51], [61]; MacBain v DPP [2002] VSC 321, [17] (Nettle J); Re KDP [2009] VSC 416, [38] (Lasry J); Re Foxwell [2014] VSC 145, [35]–[36] (Dixon J).
[23]See, eg, Mokbel v DPP (2002) 133 A Crim R 141, 142 (Kellam J); Woods [2014] VSC 1, [47] (Bell J).
The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining resident in a supervised treatment facility and participating in drug rehabilitation. Not only does such a condition severely restrict the person’s freedom of movement and association but — on the positive side — it means that the pre-trial period can be used constructively to tackle the person’s drug addiction. In this case, as in so many others like it, R’s drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to R if he remained in custody.
Having indicated that he would consent to these conditions, R had demonstrated in two different — but related — ways that his continued detention was not justified. First, for him to be in the residential program would, of itself, substantially mitigate risk; and, secondly, the treatment itself would be likely to promote his recovery from addiction and further reduce risk.
As noted earlier, his Honour was concerned about what he described as ‘the artificiality’ of the proposed arrangement with the Recoveroz organisation. Because the arrangement had been put in place by R’s lawyers, his Honour did not regard it as reflecting any ‘genuine interest in rehabilitation’ on R’s part. He was further concerned that R appeared only to have expressed interest in drug treatment because he was faced with the prospect of incarceration.
His Honour’s scepticism was entirely understandable, given R’s history. At the same time, the stringency of the residential and supervision requirements — and the proposed lengthy duration of the treatment — effectively meant that R would have no option but to participate in treatment and to remain drug-free. Moreover, the threat of a return to jail should he breach any of the conditions would provide a powerful incentive for him to comply.
With respect, we do not think that much significance attached to the fact that the Recoveroz arrangement was put in place by R’s lawyers. This will almost always be the case in circumstances such as these, given that the applicant for bail is in custody and that the legal representatives are likely to be much better equipped to identify a suitable treatment provider and to negotiate appropriate arrangements.
Nor should it matter greatly that a proposal like this is put forward for the purpose of avoiding incarceration. For someone like R, that may be exactly the incentive needed for him to confront the need to escape from addiction. The power of a sentencing court to attach drug treatment conditions to a community correction order is premised on precisely such an assumption.
For these reasons, in our view, it was not open to his Honour to conclude that R had failed to show cause. On the material before the court, R had established that his detention in custody was not justified.
Bail was granted on the following conditions, namely that R:
1.be released into the company of Mr Francis Coughlan of Recoveroz or his nominee (‘Mr Coughlan’), and attend directly upon release at the premises of Recoveroz for admission into the Recoveroz Residential Rehabilitation Recovery Program;
2. appear before the Magistrates’ Court of Victoria on 2 July 2015;
3.reside at [specified] residential premises controlled and managed by Recoveroz in Melbourne in the State of Victoria;
4.notify the Informant 24 hours prior to any change of residential address if the Appellant is required to move between any residential premises controlled and managed by Recoveroz;
5. obey all lawful instructions and directions of Mr Coughlan;
6. comply with each of the following requirements:
(i)undergo supervised random urine drug screens at least twice weekly;
(ii)not leave his residential premises unless for a purpose authorised by Mr Coughlan;
(iii)be in the company of Mr Coughlan at all times if leaving his place of residence;
(iv)only receive visitors approved by Mr Coughlan;
(v)maintain a curfew of 11.00 pm to 9.00 am every night;
7.(if and when permitted by Mr Coughlan to have a mobile telephone while a resident of the Recoveroz program) have no more than one mobile phone, the number of which is to be supplied to the Informant within 24 hours of obtaining same. The mobile telephone service must
be subscribed in the applicant’s name and with his current address;
8.report every Monday, Wednesday and Friday to the Officer-in-Charge of the [police station] between the hours of 6am and 9pm;
9.forthwith surrender all valid passports to the Informant and not apply for or possess any other passport or travel document, and not attend any point of international departure;
10.not contact or approach any witness for the prosecution other than the Informant;
11.not contact or approach any co-accused in this matter, other than his brother; and
12.not go within a 50km radius of the township of Wangaratta, other than for the purposes of attending Wangaratta Court as and when required.
PRIEST JA:
Since the applicant has been charged with several offences of trafficking,[24] and conspiracy to traffick,[25] methylamphetamine, there is no dispute that, by virtue of s 4(4)(ca) of the Bail Act 1977 (‘the Act’), he is required to show cause why his detention in custody is not justified.[26]
Section 4(1) of the Act expresses the general legislative intention that any person accused of an offence and being held in custody in relation to the offence ‘shall be granted bail’ during any postponement of the hearing of a charge for the offence or whilst he or she is awaiting trial. The general entitlement to bail in s 4(1) is, however, whittled away by succeeding provisions of s 4, which spell out circumstances in which a person charged with an offence is not to be granted bail.
Of central importance to this case, are s 4(2)(d)(i) and s 4(4)(ca).
[24]Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’), s 71 AC.
[25]Drugs Act, s 71AC and s 79.
[26]I note that he also faces other charges including burglary (Crimes Act 1958, s 77(1)); intentionally and recklessly causing injury (Crimes Act 1958, s 18); dealing with the proceeds of crime (Crimes Act 1958, s 195); possessing a prohibited weapon (Control of Weapons Act 1990, s 5AA); and possessing methylamphetamine (Drugs Act, s 73).
Turning first to s 4(4)(ca), it provides:
(4) Where the accused is charged —
…
(ca)with an offence under section 71AB, 71AC or 72B of the Drugs, Poisons and Controlled Substances Act 1981 or an offence of conspiring to commit any of those offences under section 79(1) of that Act;
…
the court shall refuse bail unless the accused shows cause why his detention in custody is not justified …
Six of the charges which the applicant faces fall within the class specified in s 4(4)(ca) of the Act. Hence, ‘the court shall refuse bail unless the accused shows cause why his detention in custody is not justified’.
Also important to the resolution of this case are the provisions of s 4(2)(d)(i) of the Act, which deal with ‘unacceptable risk’. The primary judge determined that the applicant posed an unacceptable risk that, if released on bail, he ‘would re-offend and interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person’.[27] So far as relevant, s 4(2)(d)(i) provides:
[27]Reasons [57].
(2) Notwithstanding the generality of the provisions of subsection (1) a court shall refuse bail —
…
(d) if the court is satisfied—
(i) that there is an unacceptable risk that the accused if released on bail would —
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 whether in relation to himself or any other person;
…
Given that s 4(2)(d)(i) provides that a court shall refuse bail if satisfied that there is an unacceptable risk that an accused would, if released on bail, do any of the things spelled out in the subsection, in my view it is plain that any burden of persuasion as to the existence of the relevant unacceptable risk (or risks) cannot lie with the accused. Put another way, and as a matter of ordinary language, the subsection casts no onus of persuasion on an applicant for bail to show an absence of unacceptable risk.[28] Rather, the burden of satisfying the court that one or other (or all) of the enumerated unacceptable risks would be realised rests with those opposing the grant of bail.
[28]Cf Haidy v DPP [2004] VSC 247, [12] (Redlich J).
By way of contrast, the burden of persuasion under s 4(4)(ca) rests with the applicant for bail. Thus, if the person seeking bail simply is charged with a relevant drug offence, the court shall refuse bail unless the accused shows cause why his detention in custody is not justified. It is necessary to notice that it is the mere fact that a person is charged with one of the offences enumerated in s 4(4)(ca) which animates the requirement that he (or she) show cause why his (or her) detention is not justified.
The mere fact that a person is charged with one of the enumerated offences, however, does not carry with it the necessary concomitant that he or she poses an ‘unacceptable risk’ within the meaning of s 4(2)(d)(i). Situations may be envisaged where a person will not relevantly pose an ‘unacceptable risk’, yet not be able to show cause why his or her detention is not justified. But the opposite is not true. It is difficult to conceive of a situation where a person charged with an offence falling within s 4(4)(ca) could ever — in circumstances where the court is satisfied that the person poses an unacceptable risk within s 4(2)(d)(i) — nonetheless ‘show cause why his detention is not justified’.
It may be acknowledged that any grant of bail must carry some risk. Subsection 4(2)(d)(i) is prefaced on the assumption, however, that there are some risks which are acceptable; and that, in certain situations, what might initially be an unacceptable risk may be rendered an acceptable risk (for example, by the imposition of appropriately restrictive conditions of bail). Thus, s 4(3) of the Act provides:[29]
[29]Emphasis added.
(3) In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say—
(a) the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused;
(c) the history of any previous grants of bail to the accused;
(d) the strength of the evidence against the accused;
(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;
(f) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.
Much of the debate in this Court concerned the correctness or otherwise of the analysis in Asmar.[30] To a large extent, the grounds of appeal, and the arguments in this Court, concerned themselves with whether the judge failed to apply a ‘one-step’ approach to the question of bail endorsed in Asmar, or instead applied a ‘two-step’ approach.
[30]Re Asmar [2005] VSC 487 (Maxwell P) (‘Asmar’).
In my view, however, it is an arid exercise to focus on whether the decision to grant or refuse bail is to be approached in stages or by steps. Rather, in a case where the prosecution asserts that one of the contemplated unacceptable risks exists, and the accused is in a position where he (or she) must show cause why his (or her) detention in custody is not justified, there will be a single inquiry in which the antagonists bear differing burdens of persuasion. Ultimately, the decision for the court is whether the accused might be permitted to be at liberty pending the disposition of the charge or charges against him. It may safely be assumed that, if the prosecution is able to show that one or more of the enumerated unacceptable risks exists, then the court will refuse bail unless the accused is able to persuade the court that the risks that the prosecution claim are unacceptable are capable of being rendered acceptable. Unless he is able to persuade the court that this is so, inevitably bail will be refused. There is but one inquiry, where the parties bear differing burdens. (Of course, where the prosecution does not assert that one of the unacceptable risks exist, but the accused is in a ‘show cause’ situation, there is still only one inquiry, but with a single party bearing a persuasive onus.)
Much of the present discourse has been provoked by the rejection in Asmar of the approach adopted in an earlier case, Harika,[31] where Gillard J had said:[32]
Any person accused of an offence is entitled to bail. That is the general rule laid down by s 4(1) of the Act. However, in some circumstances, the right to bail is abrogated and instead, the applicant must prove to the satisfaction of a Judge of this Court ‘why his detention in custody is not justified’. See s 4(4). The applicant for bail has the burden of proving that his detention in custody is not justified.
[31]DPP v Harika [2001] VSC 237 (‘Harika’).
[32]Ibid [41] (emphasis added).
Gillard J then observed:[33]
However, that is not the end of the inquiry. If he establishes cause, the Court shall refuse bail if it is satisfied there is an unacceptable risk that if the applicant is released on bail, he may commit one or more of the prohibited acts set out in s 4(2)(d). These include failing to answer bail, committing another offence whilst on bail or interfering with a witness. The factors that must be weighed in considering the question of unacceptable risk are set out in s 4(3). It is noted that the Court must consider all relevant matters, and the list of specified ones is not exhaustive. The Court is bound to consider the nature and seriousness of the offence, the background of the accused, the history of previous grants of bail, the strength of the evidence against him, and also the attitude, if expressed to the Court, of the alleged victim. As I have already stated, this list is not exhaustive.
The burden of establishing unacceptable risk lies upon the Crown.
The two inquiries can overlap, in the sense that the unacceptable risk factors have to be weighed, when considering whether the applicant for bail has shown cause.
The Act does not define what is meant by the phrase ‘shows cause why his detention in custody is not Justified’. It is trite to observe that all relevant circumstances must be weighed, leading to the conclusion that the detention in custody is not justified.
In considering the issue of cause, the Court must not overlook the object of s 4(4) of the Act. …
[33]Ibid [44]–[48] (emphasis added).
Whelan J made several pertinent observations in Heenan,[34] in which his Honour, so it seems to me, plainly contemplated that the relevant inquiry was to be approached in two stages:[35]
The principles applicable on this application are as follows:
(1) The Court starts with the presumption of innocence and, in relation to bail, also starts with a general right to bail as provided for in s 4(1) of the Bail Act 1977.
(2) In some circumstances the right to bail is abrogated. Section 4(4) of the Act provides that where a person is charged with certain types of offences ‘ … the Court shall refuse bail unless the accused person shows cause why his detention in custody is not justified’. …
(3) If the accused does show cause why his detention is not justified the Court shall nevertheless refuse bail if the Court is satisfied that there is an unacceptable risk that if released he would fail to surrender himself, would commit an offence, would endanger the public, or would interfere with a witness: s 4(2)(d)(i).
(4) In assessing the issue of unacceptable risk the Court is to have regard to all relevant matters, and without limiting that enquiry to such of the following as appear relevant: the nature and seriousness of the offence; the character, antecedents and home environment of the accused; the history of prior grants of bail; the strength of the evidence against the accused; and the attitude of the victim: s 4(3).
(5) Where s 4(4)(c) applies the initial burden is on the accused to show cause why his detention is not justified. If he does show cause, the burden of establishing unacceptable risk is upon the Crown. The factors relevant to the two enquiries will overlap in many cases. The factors relevant to unacceptable risk also have to be weighed when considering whether the applicant for bail has shown cause.[36]
[34]In the Matter of Heenan [2005] VSC 49 (‘Heenan’) (emphasis added).
[35]Ibid [3].
[36]Harika [2001] VSC 237 at [46].
It seems plain that a two-stage approach was contemplated in Dale.[37] In that case the applicant was charged with murder. Section 4(2)(a) thus required the court to refuse bail unless satisfied that exceptional circumstances existed which justified the grant of bail. On appeal against the refusal of bail, the Court made clear that, when dealing with the conflicting issues of exceptional circumstances and unacceptable risk, a two stage inquiry was appropriate:[38]
In this case the appellant contends that Byrne J erred by imposing on him the onus of demonstrating that he would not be an unacceptable risk if released on bail. In our view, that contention — which was but formally opposed by the Director — should be upheld.
The Director’s written submission suggested that, by analogy with decisions on the ‘show cause’ provisions of s 4(4) of the Bail Act 1977 (Vic), the questions of ‘exceptional circumstances’ and ‘unacceptable risk’ should be approached in a one-step, rather than a two-step, process. At the commencement of the hearing, we ruled that this contention could not be entertained by a three-member bench. As recently as March this year, this court affirmed the long-accepted view that the process has two stages, with the prosecutor carrying the onus on the second stage concerning unacceptable risk. As this Court said in Barbaro v Commonwealth Director of Public Prosecutions:[39]
Even if the applicant for bail satisfies the court that exceptional circumstances exist which justify bail, bail must nevertheless be refused if the prosecution establishes unacceptable risk.[40]
If it is to be contended that there is an unacceptable risk of the kind identified in s 4(2)(d) of the Bail Act 1977 (Vic), the Crown bears the burden of establishing the existence of such risk. Thus, if an applicant adduces evidence of exceptional circumstances and the Crown does not adduce evidence of, or otherwise demonstrate that there is, a significant risk, the application may be granted if the Court judges that the exceptional circumstances justify the grant of bail. Conversely, where (as here) the Crown does adduce evidence of, or otherwise demonstrate that there is, a significant risk, the Court must decide whether the risk is unacceptable. Put another way, the Court must decide whether, having regard to that risk, the circumstances are sufficiently exceptional to warrant the grant of bail.
In this case, the judge erred by proceeding on the basis that the applicant bore the persuasive burden of establishing that there was not an unacceptable risk. …
[37]Dale v DPP [2009] VSCA 212 (Maxwell P, Nettle JA and Lasry AJA) (‘Dale’).
[38]Ibid [26]–[29].
[39][DPP (Cth) v Barbaro (2009) 20 VR 717] (Maxwell P, Vincent and Kellam JJA).
[40]Ibid [6] (emphasis added), referring to Beljajev v DPP (1998) 101 A Crim R 362 which followed what the Appeal Division had said in Beljajev v DPP (unreported, Supreme Court of Victoria Appeal Division, Young CJ, Crockett and Ashley JJ, 8 August 1991).
Although it might be appreciated that in Dale the applicant had the onus of demonstrating exceptional circumstances which justified the grant of bail, rather than of showing cause why his detention in custody was not justified, as a matter of logic and principle, and having regard to canons of interpretation, that distinction does not strike me as of any importance in the analysis. In my view, Dale unequivocally supports the notion that the relevant inquiry — whether it be a ‘show cause’ case or an ‘exceptional circumstances’ case — has two stages.[41]
[41]See also DPP (Cth) v Barbaro (2009) 20 VR 717, 718–9 [4]–[6].
In Asmar, Maxwell P did not embrace the approach adopted in Harika. He said:[42]
In my view, the question — the only question — for the Court on an application to which s 4(4) applies is:
‘Has the applicant shown cause why his/her detention in custody is not justified?’
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. (The contrast with the two-step approach which is required in an ‘exceptional circumstances’ case is considered below.)
This does not mean that the ‘unacceptable risk’ issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
[42]Asmar, [11]–[12].
Maxwell P later observed:[43]
It follows that if, having considered the four risk issues, the Court is satisfied that the continued detention is not justified, there is no occasion for s 4(2)(d) to come into play. This is precisely because the matters with which s 4(2)(d) is concerned will have already been fully considered in deciding the s 4(4) question. There is no work for s 4(2)(d) to do.
[43]Ibid [14].
His Honour then sought to contrast the situation where exceptional circumstances were required:[44]
… I think it is important to make clear that once the applicant for bail shows cause that his detention is not justified, that is the end of the inquiry. There is no second step. Nor, therefore, is there any shift of onus. Where s 4(4) applies, the applicant bears the onus from start to finish, of showing that his/her detention is not justified.
The one-step approach required by s 4(4) may be contrasted with the two-step approach which has been held to be required where s 4(2)(a) or s 4(2)(aa) applies, that is, where the Court must refuse bail unless satisfied that —
‘exceptional circumstances exist which justify the grant of bail.’
This Court has consistently held that, once the applicant for bail satisfies the court that exceptional circumstances exist which justify bail, bail must nevertheless be refused — in accordance with s 4(2)(d) — if the prosecution establishes unacceptable risk. No occasion arises in the present case to consider whether, as a matter of construction, the phrase ‘exceptional circumstances... which justify the grant of bail’ itself requires a consideration of ‘unacceptable risk’ issues, such that in truth only a one-step approach is required.
[44]Ibid [17]–[18] (footnotes omitted).
With respect, why there should be the suggested distinction between the two situations is not readily apparent to me.
Gillard J revisited the matter in Paterson, a case where the applicant was in a ‘show cause’ situation.[45] His Honour said:[46]
In my opinion, the onus rests upon the party opposing the application to establish the unacceptable risks to the satisfaction of the Court. Factors that must be weighed in considering the question of unacceptable risk are set out in s 4(3) of the Act. I accept in an application such as the present that the first issue, the burden of which rests upon the applicant, in most cases will overlap with the second issue raised for consideration. Indeed, the specified matters are relevant to the issue of show cause. …
[45]Re Application for bail by Paterson (2006) 163 A Crim R 122 (‘Paterson’).
[46]Ibid 126 [23].
Having noted the one-step approach favoured by Maxwell P in Asmar, Gillard J continued:[47]
In my respectful opinion, his Honour is wrong. His reasoning overlooks not only the structure of s 4, but the report of the Statutory Law Revision Committee. I accept that in the majority of cases, the factors raised by the provisions of s 4(2)(d) will have been considered in relation to the applicant’s proof, but I do not accept that the provision does not have a part to play. It does, and it involves the respondent to the application proving, if necessary, certain factual matters. …
In my view, s 4(2)(d) may, in some cases, have a part to play. First of all, it is important to note that s 4(2)(d) is concerned with ‘unacceptable’ risk, and I refer to the section in its entirety. Not a risk which is relevant to any application, but an unacceptable risk. In order to better understand the application of this section, I invite the reader to look at the Bail Act as it was when it was passed in 1977. Section 4 covered half a page and set out in a step-by-step process what was involved in an application for bail. It was structured in a way which supports the conclusion that there were two enquiries to be made if unacceptable risk was raised by the respondent.
[47]Ibid 126–7 [26]–[27].
Later, his Honour said:[48]
… in my view, the structure of s 4 places an onus upon the prosecution to satisfy the Court that there is an unacceptable risk. The fact is, as I have already stated, there are always risks in the grant of bail, namely, that the accused will not surrender himself, or that he may commit an offence, or he may endanger the safety or welfare of members of the public, or he may interfere with witnesses or otherwise obstruct the course of justice. They are the risk factors that are clearly relevant to the question whether the applicant has shown cause. On the other hand, if the Court is satisfied that the risk is unacceptable, then it shall refuse bail. Those are the opening words of s 4(2).
In my view, the wording of the section places the burden on the prosecution to establish that risk, which is always there, and that it is unacceptable because of particular circumstances. In my view, that interpretation accords with the thrust of the Statutory Law Reform Committee’s report. In other words, the applicant carries the burden of proof of showing cause, and in determining that question, the usual risk factors are to be considered, with particular emphasis on the risk that he may fail to surrender himself to answer bail. But, on the other hand, if there is an unacceptable risk because of some particular circumstance, then the onus is on the prosecution to place the evidence before the Court to establish what is the risk in the grant of bail that constitutes an unacceptable risk. As I have already stated, that will not happen too often, but in my view it may happen, and s 4(2)(d) has a part to play.
I do not agree with the approach of Maxwell P. The two-step procedure has a practical effect, namely, the benefit of focusing the judicial officer’s mind on the issues to be considered and determined. It also represents a structured step-by-step approach to the question of bail. Maxwell P referred to some of the difficulties in the application of s 4. In my respectful opinion, if a two-step approach is adopted, the difficulties are minimised. As I have already stated, reference back to s 4 in its original form when passed in 1977 demonstrates that it was the intention of Parliament that there be a two-step procedure in an appropriate case.
[48]Ibid 129 [36]–[38].
Finally, I should note what was said by Bell J in Woods,[49] which was another case where the applicant was required to show cause why his detention in custody was not justified. His Honour did not favour the approach taken in Asmar. His Honour said:[50]
[49]Woods v DPP [2014] VSC 1 (‘Woods’) (emphasis added).
[50]Ibid [51]–[58].
By the express terms of s 4(4)(a)–(d), the onus of showing cause is on the applicant.[51] Again the precise nature of that onus has not yet been explored. As with exceptional circumstances, the considerations which may be relevant to showing cause are not specified. Each case must be assessed according to its own facts and circumstances. A particular factor or (more usually) a combination of factors may result in an accused showing cause.[52]
The relationship between the show cause and unacceptable risk tests was considered by Gillard J in Director of Public Prosecutions v Harika.[53] His Honour held that an applicant for bail to whom s 4(4)(a)–(d) applied first had to discharge the onus of showing cause why his or her detention was not justified. If this was done, the applicant then had to answer any submission by the prosecution in reliance on s 4(2)(d)(i) that the applicant represented an unacceptable risk. The two inquiries could overlap, but both had to be conducted and the onus shifted from the applicant to the prosecution.[54]
To the contrary, in Asmar[55] Maxwell P decided that, where the applicant for bail was required by s 4(4)(a)–(d) to show cause, there is only one step in the process. The court must determine ‘whether the applicant has satisfied the Court that his/her detention in custody is not justified’.[56] The unacceptable risk standard in s 4(2)(d)(i) does not come into play. Issues relating to whether the applicant represented an unacceptable risk form part of the process of considering whether the applicant had shown cause why his or her detention in custody was not justified,[57] indeed would be at the ‘heart’[58] or ‘forefront’[59] of that consideration.[60]
Gillard J later affirmed his view in Paterson.[61] His Honour discussed the position at common law before the enactment of the Bail Act in 1977[62] and referred to the different specification of the unacceptable risk and show cause tests in s 4(2)(d)(i) and s 4(4)(a)–(d) respectively of the legislation as originally enacted.[63] In his view, s 4(2)(d)(i) and s 4(4)(a)–(d) always dealt with different topics.[64] His Honour emphasised the practical consideration that usually the prosecution produced the evidence relating to unacceptable risk. Just as the prosecution had to give notice and grounds of any opposition to bail (s 7(1)),[65] the onus was on the prosecution, in reliance upon such evidence, to establish any unacceptable risk.[66] If the prosecution discharged that onus, bail had to be refused even where the applicant had shown cause why detention was not justified.[67]
The Court of Appeal has not yet determined which of the views in Asmar, on the one hand, and Harika and Paterson on the other, is correct. The decision of Asmar has been frequently followed by judges of the trial division of this court.[68]
I am respectfully in general agreement with the reasoning in Gillard J in Harika and Paterson. It is more consistent with the presumption of innocence and the prosecutorial onus of proof. A troubling feature of the interpretation of Maxwell P in Asmar is that, as regards unacceptable risk, it reverses the onus of proof. It effectively transfers that onus from the prosecution (who would normally carry it, as with the prosecutorial onus generally) to the applicant (who would normally not, consistently with the presumption of innocence). Having regard to the negative and evaluative nature of the test, this is surprising, for it is very difficult for someone to prove a negative, even more difficult for someone to prove that he or she does not offend a standard expressed in terms of risk and more difficult again when the standard is expressed in terms of unacceptable risk, especially because the relevant information will almost always be in the possession, or mostly in the possession, of the police.
There is nothing in the nature of the show cause test in s 4(4)(a)–(d) which necessarily requires applicants to disprove what would normally be for the prosecution to proof, ie that the applicant represents an unacceptable risk of specified in s 4(2)(d)(i). The provisions creating the exceptional circumstances test in s 4(2)(a)-(aa) have not been interpreted in that way and I cannot see why the provisions creating the show cause test would be interpreted differently (and to the disadvantage of applicants) in that respect. Consistently with the presumption of innocence and the prosecutorial onus of proof, s 4(2)(d)(i) gives effect to the principle that the liberty and freedom of movement of the applicant is to be denied on the ground that he or she represents an unacceptable risk only where the prosecution discharges the onus of establishing that to the satisfaction of the court. With great respect to those who have concluded otherwise, I cannot see anything in the provisions of s 4(4)(a)–(d) or the other provisions of the Bail Act which reverses this onus in show cause situations.
On the proper interpretation of the provisions, the onus is on the applicant with respect to showing cause and on the prosecution with respect to unacceptable risk. I respectfully agree with the conclusion in Harika and Paterson on the one hand and Asmar on the other that unacceptable risk is very important in relation to whether cause has been shown. The applicant for bail and the prosecution contribute to the process of consideration according to the different onuses which they bear. If the prosecution fails to establish unacceptable risk, this will count in the applicant’s favour in the show-cause assessment. If the prosecution establishes unacceptable risk, this will count against the applicant in that assessment; in practical terms, it will be dispositive because, under s 4(2)(d)(i), bail must be refused where the prosecution satisfies the court that the applicant represents an unacceptable risk.
[51]Director Of Public Prosecutions v Harika [2001] VSC 237 (24 July 2001), [41] (Gillard J); Haidy [2004] VSC 247 (22 April 2004) [8] (Redlich J); Asmar [2005] VSC 487 (29 November 2005) [11] (Maxwell P).
[52]Harika [2001] VSC 237 (24 July 2001) [47] (Gillard J).
[53][2001] VSC 237 (24 July 2001).
[54]Ibid [41]–[46].
[55][2005] VSC 487 (29 November 2005).
[56]Ibid [11].
[57]Ibid [12].
[58]Ibid.
[59]Ibid [13].
[60]Ibid.
[61]Paterson (2006) 163 A Crim R 122.
[62]Ibid 125 [20], 129 [39].
[63]Ibid 124 [15].
[64]Ibid 130 [41].
[65]Ibid 124 [9].
[66]Ibid 126–7 [26].
[67]Ibid 130 [41].
[68]Watts v DPP [2007] VSC 275 (17 July 2007) [5] (Bongiorno J); Re Magee [2009] VSC 384 (4 September 2009) [12] (J Forrest J); Re Hawli [2009] VSC 606 (17 December 2009) [16] (Whelan J); Re Bryans [2010] VSC 309 (2 July 2010) [3] (Pagone J); Re Flood [2010] VSC 605 (17 December 2010) [7] (Lasry J); El Ali v R [2013] VSC 216 (1 May 2013) [7] (Curtain J); Re Gruevski [2013] VSC 349 (4 July 2013) [6] (T Forrest J); Re RS [2013] VSC 350 (10 July 2013) [18] (Elliott J); Re Handler [2013] VSC 166 (12 April 2013) [27] (Kaye J); Olaa v R [2013] VSC 604 (1 November 2013) [11] (Dixon J).
As I said earlier, the mere fact that a person is charged with one of the enumerated offences in s 4(4)(ca), does not carry with it the necessary concomitant that he or she poses an ‘unacceptable risk’ within the meaning of s 4(2)(d)(i). In some situations a person will not relevantly pose an ‘unacceptable risk’, yet not be able to show cause why his or her detention is not justified. It is difficult to imagine a situation, however, where an accused person charged with an offence falling within s 4(4)(ca) 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).
Further, as I have endeavoured to explain, it is unhelpful and unnecessary to concentrate on whether the consideration of bail in a case such as the present is a ‘one-step’ or a ‘two-step’ process. There is but one issue for determination, as to which the interested parties bear different burdens.
So far as the issue of unacceptable risk is concerned, it is profitable to note the views expressed by Redlich J in Haidy.[69] In that case, Redlich J had before him an application for bail by an individual charged with trafficking a drug of dependence. Section 4(4)(a) provided that, as a result of the applicant having been charged with an indictable offence whilst at large awaiting trial for another indictable offence, the court was required to refuse bail unless the accused person showed cause why his detention in custody was not justified. When addressing the degree of risk, Redlich J observed:[70]
Bail when granted is not risk free: Williamson v DPP (Qld).[71]
As the offender’s liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient: Dunstan v DPP;[72] Williamson v DPP (Qld).[73]
It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events … To require that the risk be proved to a particular standard would deprive the test of its necessary flexibility. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk: R v Phung;[74] MacBain v Director of Public Prosecutions.[75]
[69]Haidy v DPP [2004] VSC 247 (‘Haidy’).
[70]Ibid [14]–[16] (emphasis added).
[71][2001] 1 Qd R 99; [1999] QCA 356.
[72](1999) 92 FCR 168; (1999) 107 A Crim R 358; [1999] FCA 921 (Gyles J), [56].
[73]Supra at [21].
[74][2001] VSCA 81.
[75][2002] VSC 321 (Nettle J).
Redlich J then turned to circumstances other than the degree of risk and said:[76]
To assess whether the risk is unacceptable the court is required to have regard to the matters set out in s 4(3) of the Act and all other relevant matters. Some of those matters may not bear upon the degree of risk. The degree of likelihood of the occurrence of the event may be only one factor which bears upon whether the risk is unacceptable. Thus the time which will elapse before the offender’s trial has been held to be a factor which may bear upon whether the risk is unacceptable: Mokbel v DPP (No 2);[77] … Mokbel v DPP (No 3).[78] As Kellam J was to say in Mokbel (No 3):
The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood the allegations against an accused man then brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay.[79]
[76]Haidy, [18].
[77][(2002) 132 A Crim R 290]; [2002] VSC 312 (Kellam J), [41].
[78][(2002) 133 A Crim R 141]; [2002] VSC 393.
[79]Supra at [10].
In the present case, the respondent submitted to the primary judge that there was an unacceptable risk that the applicant would interfere with witnesses, and would likely commit offences on bail within a network of criminal associates in the Wangaratta area.[80] His Honour thought that removing the applicant from the scene of his alleged wrongdoing, and requiring him to attend Recoveroz, would not sufficiently reduce the risk of committing an offence whilst on bail so as to render the relevant risk ‘acceptable’.[81] The judge also thought that the ‘unacceptable risk remains’ of the applicant interfering with witnesses.[82] Although he thought it to be ‘disturbing’ that the applicant would likely spend two years in custody prior to trial,[83] the judge was of the view that the applicant had not shown cause, since he considered the relevant unacceptable risks remained,[84] bail conditions being insufficient to obviate the risks.[85]
[80]Reasons [10].
[81]Ibid [53].
[82]Ibid [56].
[83]Ibid [42].
[84]Ibid [57].
[85]Ibid [54].
On an appeal such as the present, this Court’s right to intervene is not unfettered. It may only do so if it appears that the primary judge has mistaken the facts; has acted on an erroneous principle of law; has taken into account irrelevant matters or has failed to take into account relevant matters; or has clearly given insufficient weight, or excessive weight, to some matter taken into account; or unless the decision is unreasonable or plainly unjust.[86]
[86]House v R(1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See also Barbaro (2009) 20 VR 717, 719–20 [9]–[11] and Fernandez v DPP (2002) 5 VR 374, 390 [31], although both were concerned with appeals by the DPP. See also R v Taylor and O’Meally [1958] VR 285, 289.
The other members of the Court have concluded that it was not ‘open’ to the primary judge to find that the applicant had failed to show cause. Their Honours’ reasons for so concluding are set out in their reasons and I need not repeat them. Although I admit to having experienced considerable hesitation — principally flowing from the troubling contents of the letter written to Cheyne Orcher, and the applicant’s previous breaches of court orders[87] — in the end I have concluded that the primary judge’s decision was wrong. Against the background of a two year delay in the matter coming to trial, it is unjust to keep the applicant in custody in circumstances where the risk of re-offending and interfering with witnesses can, in my view, adequately be addressed by appropriately strict conditions. Appropriately restrictive conditions will render the putative risks acceptable. Once such conditions are in place, given the delay, it is not open to conclude other than that the applicant has satisfied the burden of showing cause why his detention in custody is not justified.
[87]Reasons [51].
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