Saises v Director of Public Prosecutions (Cth)
[2025] VSC 12
•23 January 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0290
| FERNANDO SAISES | Applicant |
| v | |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 January 2025 |
DATE OF RULING: | 23 January 2025 |
CASE MAY BE CITED AS: | Saises v DPP (Cth) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 12 |
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CRIMINAL LAW — Bail variation application — Applicant charged with committing indecent acts — Applicant granted bail by Magistrates’ Court — Application to vary denied by County Court — Applicant a citizen of the Philippines — Applicant seeks to return home for a short period before trial to visit wife who is unwell — No guarantee that extradition process will be engaged in — No confirmed reporting procedure when overseas — Absence of oncological opinion with respect to wife’s diagnosis — Unacceptable risk that applicant will not return to Australia to stand trial — Application denied — Bail Act 1977 (Vic) ss 18AC, 3AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | L Bull | Victoria Legal Aid |
| For the Respondent | G McMaster | Commonwealth Director of Public Prosecutions |
HIS HONOUR:
Introduction
Fernando Saises (‘the applicant’) applies to this Court for a variation of the conditions attached to an existing grant of bail.
The applicant was originally granted bail on 15 March 2024 at the Melbourne Magistrates’ Court. Since that grant of bail, the conditions have been varied to remove the curfew condition and reduce reporting to once weekly.
Background
In early 2024, the applicant was employed by Princess Cruise Lines Limited, and was a stateroom steward on the cruise ship, the Royal Princess. The applicant’s responsibilities included maintaining guest staterooms.
The alleged victim is a 61 year old woman who is a citizen of United States of America, and was a passenger of the ship on which the applicant was working.
On 10 March 2024, the applicant is alleged to have committed offences involving acts of indecency against the complainant whilst on the cruise ship. At the time of the alleged offending, the ship was located about 234 nautical miles from Australia and was in international waters.
The details of the allegations made against the applicant are now set out in the Summary of Prosecution Opening for Trial, filed in the County Court of Victoria. For the purposes of this hearing it is unnecessary to recite the allegations in detail, other than to remark that in broad terms the applicant is alleged to have knocked on the complainant’s cabin door, approached the complainant, grabbed her face with both hands, put his lips to hers, and put his tongue into her mouth. The applicant is also alleged to have run his hands down the complainant’s buttocks. After this alleged behaviour, the complainant told the applicant to leave her room, which he did, however, he returned again shortly afterwards gaining access via his passkey. The applicant is then alleged to have knelt in front of the complainant who was sitting on the bed, grabbed her face with both his hands, kissed her on the lips using his tongue, ran his hands all over her body and clothing, and put his hand on her hip area and buttocks and put his face into her breasts whilst pulling her close to him.
It is further alleged that the applicant wrapped his arms around the complainant’s waist, lifting her up off the ground and squeezing her forcefully, with her feeling his erect penis pressing into her stomach and groin area. It is then alleged that the complainant became hysterical, and the applicant put her down and smacked her on the buttocks using an open hand. Once the applicant left the room, the complainant went through an adjoining balcony to the next door cabin and told her friends what had happened.
It is alleged that by carrying out these actions, the applicant committed acts of indecency against the complainant.
Upon the ship's later arrival into Melbourne on 13 March 2024, the applicant was arrested by members of the Australian Federal Police.
Initially, the applicant was charged with a series of offences including burglary, which was alleged to have been committed when he opened the door of the complainant’s stateroom, presumably with the alleged intention of committing a sexual offence. This burglary allegation appears to no longer be pursued.
Procedural history
On 8 October 2024, following a two-day contested committal hearing, the applicant was committed to stand trial. With strict conditions, the applicant was bailed to further appear at the County Court of Victoria. Following the committal and an initial directions hearing at the County Court, an application was made to vary or suspend such of his bail conditions which would allow the applicant to return to the Philippines in the period leading up to his trial. The applicant is a citizen of the Republic of the Philippines and holds a Philippine passport. He is not a citizen of Australia. That application was refused by his Honour Judge Moglia on 6 December 2024.
The prosecution has filed a four-charge indictment alleging acts of indecency. As noted above, the initial burglary charge has not been proceeded with.
The matter is listed for trial commencing on 2 June 2025, which is approximately four months from now. It is proposed that the matter will be listed for sentencing indication in the County Court in March 2025.
The applicant’s submissions
The applicant submits that this Court should suspend a select number of bail conditions which would allow him to travel to the Philippines in the period leading up to his trial. The sole purpose of this application is that the applicant’s wife has been diagnosed with invasive breast cancer, which required her to undergo a mastectomy and continuing treatment, and the applicant wishes to return to the Philippines to support her. The applicant’s wife’s condition is a an important feature of this application.
The applicant’s primary contention is that, in circumstances where his wife is suffering with breast cancer, he should be permitted to travel home to the Philippines in order to provide her with emotional and physical support. I note that the diagnosis of breast cancer was made after the applicant is said to have committed the alleged offending.
It is submitted that although sexual offending is to be regarded as inherently serious, these allegations fall towards the lower end of the scale of objective seriousness. Counsel for the applicant accepts that there is a case to answer, however, contends that there are triable issues, with the credibility and reliability of the complainant and associated witnesses forming part of the key matters at trial. Counsel further argues that there are pre-trial rulings to be made in relation to aspects of the admissibility of the prosecution evidence.
Counsel highlights the fact that the applicant has no prior criminal history, and therefore no adverse bail history, and has been fully compliant with his bail conditions since his original grant of bail. The applicant is facing no further allegations of misconduct. It is noted that the applicant has worked in the cruise ship industry for approximately 20 years, and it is impliedly asserted that he will be able to return to his career should he be acquitted of the charges before the Court. However, counsel does acknowledge that the applicant’s employment with Princess Cruise Lines Limited was terminated shortly after the allegations came to light, albeit that a letter provided to the Court about this issue is to some extent unclear in this regard.
Counsel notes that since being granted bail, the applicant has been supported by a community organisation which has been providing him with assistance in various respects.
The respondent’s submissions
The respondent opposes the application to vary the applicant’s bail conditions. It is submitted that there is an unacceptable risk that the applicant will fail to return to Australia to appear at his trial, and that there are no conditions of bail which could ameliorate this degree of risk to an acceptable level.
The respondent contends that the offences with which the applicant has been charged are serious and carry significant maximum penalties. With respect to ensuring that the applicant returns to Australia, the respondent submits that the extradition process is complex, and it is possible that such a process will not be pursued should the applicant refuse to return.
Whilst acknowledging the reasons for the application, counsel for the respondent contends that the applicant is still able to maintain regular telephone and video-call communication with his wife, who is being supported by family members and relatives in his absence.
The respondent further submits that the applicant can only offer emotional and physical support to his wife should he travel to the Philippines, and that any submission that he will be able to assist his family financially must be rejected given that the applicant has failed to find employment in Australia, and thus has not been working since he was charged almost 12 months ago.
Analysis and discussion
This matter comes before the Court following a refusal by a County Court Judge to vary bail conditions to allow the applicant to return to his home country prior to his trial in June 2025.
As is highlighted by counsel, the Bail Act 1977 (Vic) (‘Bail Act’) is relatively silent as to the test to be employed by this Court when considering a proposed variation to bail conditions. Essentially, however, this hearing was conducted on the basis that I must be satisfied that the risk associated with the applicant’s potential failure to return to Australia for his trial is a risk that is unacceptable in all the circumstances. I approach the resolution of this application on the basis that it is for the respondent to so satisfy the Court of this risk, and that I must apply the well understood factors set out in the Bail Act which bear on the assessment of risk in bail applications.
As is well understood, a grant of bail, or a variation of an existing grant of bail, is seldom without some degree of risk. The question to consider is whether or not the prosecution has discharged the burden of establishing that such risk is an unacceptable one, which cannot be ameliorated by the imposition of sufficient conditions.
In this case, the hearing proceeded on the basis that the risk to be assessed is whether or not the applicant would voluntarily return to Australia and appear at his trial should he be permitted to leave this country.
Medical reports provided to the Court make clear that the applicant’s wife was first diagnosed with breast cancer after the applicant’s arrest in relation to the present charges. Thereafter, the records indicate that investigations into her condition have taken place and there is a firm diagnosis of invasive breast cancer for which she will be required to receive ongoing treatment.
There is no dispute on the part of the respondent that the applicant’s wife is currently suffering from breast cancer as described in the provided material. However, it appears conceded that her situation is not regarded as urgent nor terminal, and is potentially ‘curable’. This concession, however, is made in the absence of an opinion from a suitably qualified oncologist, local or Filipino, who could have provided assistance to the Court in determining the degree of seriousness of the applicant’s wife’s condition, more detailed information about her diagnosis and overall prognosis, and the expected progression of her treatment regime. In my opinion, such an opinion could and should have been provided. Whilst medical records are no doubt relevant in this case, they are of limited value without the assistance of an opinion from an expert. Given the absence of such an opinion, this Court is quite unable to interpret anything beyond the basic information regarding a diagnosis provided in the reports.
In making an assessment of whether the risk that the applicant will not voluntarily return to Australia is an acceptable one, a number of factors have been relied on by the applicant, including that he has no prior convictions; the allegations are currently denied and will be defended; there are triable issues; if found guilty, the applicant may not receive a custodial sentence; and, the applicant’s wife suffers from a serious illness and needs ongoing emotional and physical support.
With respect to limiting the risk in this matter, the Court has been provided with a letter of support from the Consul-General of the Consulate-General of the Philippine Embassy in Melbourne, which states that, should the bail variation be granted and the applicant return to the Philippines, the applicant may be able to report to the ‘police attaché’ at the Australian Embassy in Manila. However, the proposal remains somewhat non-specific and it is apparent in any event that no steps have been taken to establish with that Embassy whether such an arrangement is even possible, or practical.
On the other hand, the respondent argues that there is a significant risk that, should the applicant be permitted to travel to the Philippines, he will simply decline to return to Australia to stand trial. The respondent contends that it is undesirable to permit the applicant to travel in circumstances where extradition proceedings will need to be considered in the event that he does not return. Counsel submits that although the extradition process exists, there is no guarantee that, should the applicant refuse to return to Australia, such a process will be pursued. The extradition process involves various agencies, both in Australia and the Philippines, consideration by Australian authorities regarding whether extradition will be sought, and granting of an application for extradition by the Philippine authorities.
In all the circumstances, I regard the possible future involvement of complex extradition proceedings to force the return of the applicant to Australia as engaging in a degree of speculative reasoning. As a result, I will place limited weight on this matter in determining the application. I prefer to determine the application on the basis of an assessment of the risk that the applicant may simply decide not to return to this country, as required.
In short, it is submitted by the respondent that, in circumstances where the matters are now before the County Court of Victoria with a set trial date in early June 2025, along with the possibility of a sentence indication being granted and accepted in March 2025, variation to the applicant’s bail conditions to permit him to travel should not be granted.
The respondent contends that, unfortunate though it is, the condition of the applicant’s wife is not an urgent one at this point, and she is currently supported by other members of her family. Furthermore, it appears the case that the applicant’s employment in the cruise industry has been terminated, and it is not expected that the applicant will be able to provide financial support to his wife or family should he return to the Philippines. Thus, it is argued that the only support that can be given is of an emotional and physical nature, rather than financial.
There is a possibility that, should the applicant return to the Philippines, his wife’s condition may deteriorate, causing the applicant to refuse to voluntarily return to Australia. Such a matter may have been a relevant consideration in this particular application, however, given the absence of a medical opinion with respect to the likelihood of such an occurrence, I cannot and have not had regard to the possibility of this outcome when considering this application.
In all the circumstances, whilst experiencing considerable sympathy for the applicant in the difficult situation in which he finds himself, I am of the opinion that the respondent’s submissions should be accepted. Whilst I accept that the allegations in this matter fall towards the lower end of objective seriousness as they are not of a penetrative nature, nor was penetration attempted, I note that assaults of this kind can and should be regarded as potentially terrifying to an alleged victim.
Having found this much, I remain unconvinced that a custodial outcome is inevitable in all the circumstances, particularly if a sentence indication is provided on a possible plea, or pleas, of guilty, should the case move towards resolution. Of course, should the matter be fully contested with eventual verdicts of guilty, a custodial outcome may become more likely, as submitted by the respondent. In making these assessments, the Court has not had the benefit of a copy of the prosecution brief, nor committal depositions, thus limiting me to make anything more than the broadest assessment about the strength of the prosecution case. As is often said, it is not for this Court to make final conclusions about the prospects of either side of the case, other than to remark that it appears to me that the case against the applicant is a reasonably arguable one.
In the end, balancing all matters as best I can, I am of the opinion that the respondent has satisfied the Court that there is an unacceptable risk that the applicant may not willingly return to Australia for his trial. Furthermore, as things stand, the applicant has a trial date in early June 2025, meaning that this matter should be resolved by the middle of the year, in some five or six months from now. The applicant is not in custody, and there appears no reason why he cannot continue on his current bail conditions. In these circumstances, delay in the resolution of the proceedings should not be regarded as a significant factor weighing in favour of the application for variation. That said, should the applicant’s trial date be vacated and extended for an unreasonable period, this factor may become more significant.
Therefore, for the reasons expressed above, the application for variation of the applicant’s bail conditions shall be refused.
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