Thursday, May 1, 2014


Supreme Court of Victoria - Court of Appeal

A L v The Queen [2014] VSCA 81 (1 May 2014)

Last Updated: 1 May 2014

S APCR 2013 0256



13 March 2014
1 May 2014
[2014] VSCA 81
Not applicable
CRIMINAL LAW – Appeal – Interlocutory appeal – Application for leave to appeal – Applicant on bail – Breach of bail – Breach continuing at date of hearing – Whether grant of leave to appeal ‘in the interests of justice’ – Serious breach of undertaking of bail – Application refused without determination of meritsCriminal Procedure Act 2009 (Vic) ss 295(2), 297(1).


For the Applicant
Mr D Gurvich with Mr R Edney
Doogue O’Brien George
For the Respondent
Mr O P Holdenson QC with
Mr D J Lane and
Ms K Breckweg
Commonwealth Director of Public Prosecutions


1 The applicant is facing trial on serious drug offences under the Commonwealth Criminal Code Act 1995 (Cth). On 11 December 2013, in a pre-trial ruling, the trial judge rejected a defence argument concerning the mental element of the relevant offences. On 8 January 2014, the applicant’s solicitors filed an application for leave to appeal against that interlocutory decision, pursuant to s 295 of the Criminal Procedure Act 2009 (Vic) (‘CPA’). 

2 The hearing of the application for leave was fixed for hearing on 13 March 2014. Shortly before the hearing, however, the Court was informed that the applicant had failed to answer his bail and was still at large. When the application for leave came on for hearing, the Court invited submissions from the parties as to whether the application should proceed, given that the applicant had absconded while on bail. 

3 After hearing submissions, we announced that the application for leave would be refused, without a determination on the merits. We said that we would give our reasons in due course. These are those reasons. 

The discretion to grant leave to appeal

4 An appeal against an interlocutory decision is by leave only.[1] The granting of leave is circumscribed by s 297(1) of the CPA, which provides as follows:
297 When leave to appeal may be given (1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.[2]
5 In the present case, we were not satisfied that it was in the interests of justice to grant leave to appeal. That being so, the discretion to grant leave was not enlivened, and the application for leave had to be refused. 

6 In our view, the applicant’s breach of bail — which we were told had occurred in January 2014 and was continuing — was a serious breach of the undertaking which he had given to the County Court, that being the basis upon which he was granted bail. To have permitted him to invoke the interlocutory jurisdiction of this Court while that breach continued would, in our view, have been tantamount to condoning the breach. 

7 It should be emphasised that what was in issue here was the exercise of a statutory discretion premised on a state of satisfaction being established. It follows that little assistance is to be derived from decisions in other jurisdictions, under different rules (both common law and statutory), about whether — and when — a criminal trial or appeal can proceed in the absence of the accused/convicted person.[3]
8 The closest analogy, in our view, is with the decision of the Full Federal Court in Schoenmakers v Director of Public Prosecutions.[4] In that case, Mr Schoenmakers was appealing against an extradition order and had been released on bail pending the hearing of the appeal. When the appeal came on for hearing, he purported to appear by counsel but was not present in person. The Full Court dismissed the appeal, holding that his failure to comply with the conditions of his bail was ‘a sufficiently serious breach of an interlocutory order’ to enliven the Court’s jurisdiction, as a matter of implied incidental power, to dismiss the appeal.[5]
9 There is no relevant distinction, in our view, between the breach of bail in that case and the breach in the present case. Both involve contumelious conduct of a most serious kind

10 The applicant’s breach of his undertaking of bail is not merely reprehensible but is criminal conduct in itself.[6] Given that he is on bail with respect to the very charges the subject of the interlocutory application, his conduct in breaching bail was directly relevant to the Court’s consideration of whether to exercise its discretion in his favour.[7]
11 We should add, for completeness, that there may be cases where it would be in the interests of justice to grant leave to appeal notwithstanding the absence of the applicant. If, for example, there were some manifest defect in the proceedings, it might be necessary to deal with the point without delay. 

12 It must not be forgotten that this was an application for leave to appeal from an interlocutory decision, not an appeal against conviction. The Court’s assessment of where the interests of justice lie will ordinarily be different where what is under challenge is a pre-trial ruling, not a conviction or a sentence.

The position of the Commonwealth Director

13 Senior counsel for the Commonwealth Director of Public Prosecutions submitted that the Court should proceed to hear the application for leave to appeal on its merits, notwithstanding the breach of bail. Counsel submitted that, as the point of law at issue was of general importance, it was in the public interest to have a ruling from this Court on the question. 

14 This was a most surprising position for the Director to adopt. We would have expected the Director to resist, on public policy grounds, an attempt by a person who was in breach of his bail to seek a favourable exercise of the Court’s discretion. Pragmatism would appear to have triumphed over principle. 

15 Even from a practical point of view, the Director’s position was puzzling. First, senior counsel for the Director maintained that the judge’s ruling was clearly correct. If that was so, there would have been no basis for a grant of leave in any event. Secondly, the Director did not need to support this particular application in order to have the point of law considered by this Court. It would always be open to the Director to ask this judge, or a judge in a different trial, to state a case under s 302 of the CPA.

Failure to notify the Registry

16 It is a matter of serious concern that, although both parties had been aware for some time that the applicant had failed to comply with his bail conditions, this fact was not notified to the Registry until shortly before the scheduled hearing. We accept that counsel for the applicant had formed the view that the application could proceed in his absence, and that the Court therefore did not need to be notified. For the reasons we have given, however, this view was mistaken. 

17 In any case, we would have expected the fact of the applicant’s having absconded to be drawn promptly to the Court’s attention. As should be well known to practitioners, interlocutory applications are given priority because of their implications for trial listings. The applicant’s disappearance was — at a minimum — relevant to a consideration of whether he should receive the usual priority. 

Moreover, the late notification meant that the members of the Court had already spent a good deal of time preparing for a hearing which, in the event, did not take place. 

Failure to issue a warrant

18 Senior counsel for the Director advised, in response to a question from the Court, that no warrant had yet been issued for the arrest of the applicant. The explanation put forward was that his address was not known. This was, with respect, a quite unsatisfactory explanation. Once a breach of bail has been notified, especially in a case of serious offending like this, a warrant should be obtained without delay. The apparent lack of urgency shown in the present case seems inexplicable.
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[1] CPA s 295(2).
[2] Emphasis added.
[3] See, eg, R v Hallocoglu (1992) 29 NSWLR 67, 72–73; R v Gooch [1998] EWCA Crim 132; [1998] 1 WLR 1100; R v Charles and Tucker [2005] EWCA Crim 651; [2001] 2 Cr App R 15; Benedetto v The Queen [2003] EWHC 174; [2003] 1 WLR 1545, 1563 [48].
[4] (1991) 30 FCR 488.
[5] Ibid 489. See also Wen Shao Zen v Minister [1993] FCA 67.
[6] Bail Act 1977 (Vic) s 30(1).
[7] See Jopar v The Queen (2013) 275 FLR 454, 461 [36].

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