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Thursday, 1 October 2009

Dale on bail

Further Edit: In DPP (Cth) v Barbaro & A-G (Vic)(2009) 20 VR 717 the Court observed that there will be circumstances where the actual or antipated delay of a trial is of such magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable.



Pasquale Barbaro applied for bail again in December of last year, arguing the further passage of time had ameliorated the risk previously found. The Supreme Court didn't agree. It was his fourth application in relation to Commonwealth charges and second in regard to state offences. The judgment of Coghlan J can be found here.










Edit: Since Dale was handed down, many practitioners making bail applications are seeking to draw similarities with that case. There is certainly nothing unique about people being diagnosed with clinical depression when facing extended periods in gaol awaiting trial, though whether as severe (or the delay as prolonged) as in Paul Dale's case will be what a court will be primarily interested in.



In Re Eileen Creamer, Whelan J adopted the approach of Lasry J in several respects. In particular, in response to counsel Robert Starry's contention that the Charter of Human Rights and Responsibilities Act 2006 changed the applicable tests for bail, His Honour said,



31 It was submitted on behalf of the applicant that the Charter of Human Rights and Responsibilities Act 2006 has relevantly altered the way in which the Court ought to consider the issue of delay in this context. I would again adopted the approach of Lasry J. In In the matter of Dickson Lasry J said, addressing what Bongiorno J had said in Gray:



“What his Honour’s ruling demonstrates is that the Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act.”


The application in Re Creamer was refused.






Last week the Court of Appeal gave its reasons for releasing former police detective Paul Dale on bail, in DPP v Dale [2009] VSCA 212.



Previous applications for bail had been unsuccessful; DPP v Dale [2009] VSC 107; re Paul Noel Dale [2009] VSC 332(R).



Interestingly, in the most recent application counsel for the DPP chose to query whether the Court of Appeal was competent to consider an appeal against refusal of bail. It had been decided that no avenue of appeal lay from a refusal of bail in the Trial Division of the Supreme Court in Beljajev's case. But since then a Court of Appeal composed of five justices overturned that historial interpretation, in Fernandez v DPP [2002] VSCA 115. Not surprisingly, the Court in Dale chose to follow the precedent in Fernandez.



Detailed submissions were made about the effect of incarceration on the mental health of the accused. As it had done in R v Benbrika & Ors (Ruling 20) [2008] VSC 80, the Court expressed disquiet over the conditions that high security prisoners are kept in while on remand.

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