Van Tongeren v Odpp (Qld)

[2013] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Van Tongeren v ODPP (Qld) [2013] QMC 16

PARTIES:

PAUL VAN TONGEREN

(applicant)

v

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION (QLD)

(respondent)

FILE NO/S:

MAG217673/13(5)

DIVISION:

Magistrates Courts

PROCEEDING:

Bail Application

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

14 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2013

MAGISTRATE:

The Honourable Judge Carmody QC

ORDER:

Bail is refused.

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – BAIL – whether the applicant is a participant in a criminal organisation – whether the applicant can show cause why their continued detention is unjustified

Bail Act 1980 (Qld)

COUNSEL:

ME Bouchier for applicant

DR Kinsella for respondent

SOLICITORS:

Bosscher Lawyers for applicant

Respondent on own behalf

Introduction

1. This is a contested bail hearing.

1. The applicant is an unconvicted defendant who has been held in custody since his arrest eight (8) days ago on charges of disorderly behaviour on hotel premises and affray.

Jurisdiction

1. Bail hearings in the Magistrates Court are ordinarily held in the geographical district or division in which the defendant lives or the offence occurred (cf s 139(1)-(2) Justices Act 1886 (Qld).

1. However, the venue can be varied by direction of the Chief Magistrate (s 12(2)(d) Magistrates Act 1991 (Qld)).

1. By Practice Direction of 21 of 2013 all bail hearings to which s 16(3A) of the Bail Act applies are to be heard in Court 20 in the Brisbane Magistrates Court from 4 November 2013.

1. Thus, notwithstanding that the related criminal proceedings are pending in the Toowoomba Magistrates Court, this court has authority to grant bail under s 8 of the Bail Act (Re: Groves’ Application (2013) Qd R 310 per WB Campbell J).

History of bail

1. Modern bail is conditional liberty granted subject to the Act. Conditions added to encourage compliance must not be overly onerous for the person in the circumstances: s 11(1). Special restrictions may also be imposed to ensure the objects of bail and mitigate risk.

1. A defendant not released on bail or sentenced for the offence charged must be remanded in custody: s 8(2).

1. The word bail derives from the French for hold and deliver. The old common law did not recognise a right of liberty for defendants on remand (Chau –v- DPP (1995) 37 NSWLR 639 per Gleeson CJ at 646) but from the early medieval period routinely released them into the custody of a surety via a form of habeas corpus as an alternative to the “inadequate and disease ridden gaols and lock ups” (R Roulston, Principles of Bail, Proceedings of the Institute of Criminology, Sydney University Law School (1969)).

1. In Norman times the power was entrusted to the nobles and then to sheriffs but was transferred to justices during the reign of the Tudors and  in the late 17^th  century devolved to Magistrates because of  excesses and abuse of power “designed to elude the benefit of… liberty”(Sir William Holdsworth A History of English Law (vol IV pp525-8)).

1. Over the next 500 years…