Wednesday, 11 August 2010

Tardy accused is still entitled to bail

GP v The Queen [2010] VSCA 142 saw the Court of Appeal dealing with another Criminal Procedure Act interlocutory appeal.

The accused was committed for trial on 21 counts of obtaining and attempting to obtain property by deception. From 21 July 2009 until 31 May 2010, and despite several directions hearings and adjournments, he didn't retain any lawyers, though it seems he told the court he could get money to fund his defence. In common parlance, a case of 'gunna'...

On 19 April, the judge told the accused if he didn't get his act together she'd consider an application by the Crown to revoke bail.

On 23 April, not much had changed. The prosecutor applied to revoke GP's bail, and the judge granted that application.

GP applied for the judge to recuse herself. She declined; hence the appeal. GP v The Queen tells us now, at [47], that decision is an interlocutory one that may be subject to the process under s 295 of the Criminal Procedure Act 2009.

The Court of Appeal also considered the bail revocation. At [59], Ashley JA said:

[59] I next consider — and indeed it was correctly conceded by senior counsel for the Crown — that there was no basis for the judge revoking the applicant's bail. The reasons which her Honour gave were quite outside legislative warrant, and gave what her Honour did the appearance of punishing the applicant for transgressing directions which in some respects were themselves beyond power. The circumstance that, as it appears, another County Court judge had earlier threatened the applicant with such a course did not transform what was otherwise beyond power into a lawful act. The judge's statement of what needed to be done before a fresh grant of bail would be considered was misconceived. It built upon the illegality of what was being done by the judge's order.

Bongiorno JA endorsed that observation, and added comments on the role of the prosecutor.

[64] I agree with Ashley JA and add only the following comments concerning the position taken by the Crown in this matter before the primary judge. The function of a Crown prosecutor is to act as Minister of Justice. It is not the function of a Crown prosecutor merely to act as might some counsel in an ordinary inter partes proceeding, taking every point regardless of its merit. It is the function of a Crown prosecutor, by appropriate argument to assist a Court not to fall into appealable error. In this case the prosecutor fell short in the discharge of these duties.

[65] On 23 April she seized upon the judge's earlier suggestion that bail might be revoked without any apparent consideration of whether there were any grounds for such revocation. There were of course no such grounds.

[66] The application for revocation was made using the arguments suggested by the judge and included reference to conduct of the accused's brother-in-law in giving evidence before the Court. These arguments were insufficient in any sense to justify an application for revocation of bail. Further, when the judge said she would not consider bail for the applicant until he had complied with her wishes as to the preparation for trial, the prosecutor remained mute, complicit in a situation where a citizen had been unlawfully deprived of his liberty by having his bail revoked and would continue to be deprived of his liberty until the judge's wishes were met.

[67] The prosecutor should have politely but firmly pointed out to her Honour the illegality of the course she was following and urged her to reconsider the matter. That was the prosecutor's duty. The criminal justice system depends upon prosecutors discharging their obligations to the Court fearlessly. Had the prosecutor done so in this case it may have been unnecessary for this Court to intervene in the applicant's trial as it has had to do.

Two things come out of this loud and clear.

The first is about the proper function of bail. Dr Manhattan mentioned last week the proposed tinkering with the Bail Act. (It falls a long way short of the VLRC recommendations to overhaul bail legislation in Victoria, but I suspect there's more to come and this is just a stop-gap.) If there were any doubt, it's now unarguable that case-management isn't a relevant consideration in bail decision-making.

The second is, once again, the Courts' expectation of advocates — and prosecutors in particular — to hold firm, no matter the view from the Bench, in helping a Court avoid appealable error.


Jeremy Gans said...

Hmmm. Pamela Jenkins (and the VGSO, as model litigant) also got a serve from the VCA (including Ashley JA) in Morgan v State of Victoria [2008] VSCA 267. Perhaps there is more going on here than just this particular case?

Anyway, this case (which commenced in 2007, so isn't exempted from the Charter) is a missed opportunity to apply Charter s. 21(6), which specifies an automatic right to bail, subject to guarantees to attend for trial, other stages of proceedings and execution of judgment. All other purposes of bail and bail conditions (including some routinely applied in Vic) need to be justified as reasonable limits on Charter s. 21(6).

There's also Charter s. 24(1), requiring an independent tribunal, and Charter s. 38(1), obliging the prosecution to act (including proactively act) compatibly with human rights.

Alan said...

I feel sorry for the judge in this situation.

The court has an obligation to the efficient administration of justice. We need to have confidence that judicial officers can spot the difference between an unrepresented accused who is floundering and needs the court's assistance, and those who are deliberately sacking one counsel after the other in an effort to thwart justice. If we don't have confidence that judges are skilled and experienced enough to pick the difference, we might as well pull up stumps and all go home.

A judge can't proceed to hear the matter because Dietrich v The Queen won't allow him to force the foot-dragging accused on. So what is the judge supposed to do?

It might sound old-fashioned to hark back to an era (not so long ago) when the person who sat on the bench made the decisions and the one who sat in the dock had to ask for things to be done. Now it seems to be the other way around, with judges pleading with accused to prepare their cases, while the accused comes up with infinite excuses for why they have no lawyer, why the lawyer has no instructions, or why the case has not been prepared.

Can we dispose of the idea that 'justice' is to be equated with 'whatever the accused wants, regardless of merit'?

Kyle said...

Jeremy, I don't know about your first point. As to the second, I think you're right, and that what it reflects is that human rights jurisprudence is still not really entrenched yet in the way other aspects of legal reasoning are.

Unless someone expressly raises the point, the Charter doesn't seem to come to the fore

Alan, the same thoughts crossed my mind. Who'd be a judge given the workload and the tightrope to balance in cases such as this? I guess the short answer in this case is that revoking bail isn't the appropriate resolution. The nature of appeals is that often we only get a result that says what not to do, rather than explaining what to do.

Edin said...

I have read this decision and it is clear to me that the accused in this matter was trying to delay the hearing of the case. What the judge ought to have done was charge him with contempt for being in breach of his undertakings to the court. Not revoke his bail.