Dunstan v Director of Public Prosecutions [1999] FCA 921

FEDERAL COURT OF AUSTRALIA

Dunstan v Director of Public Prosecutions [1999] FCA 921 CRIMINAL LAW – Bail – appellant charged with various offences arising out of bomb-like devices being sent by post to various people – before committal for trial magistrate denies bail – judge of Supreme Court "reviews" that bail decision under s 43 Bail Act and grants bail – Full Court purports to review that review and refuses bail – On committal no application for bail made – bail formally refused – accused person applies to Supreme Court for bail – treated by second judge as an application to "review" a bail decision – bail again refused – appeal to Federal Court – whether Supreme Court has power to review a review – statutory right to bail unless Court satisfied that it is "justified in refusing bail" – weight to be given to "presumption in favour of bail" – relevance of changed circumstances – DPP concedes possible "difficulties" in proving intent to cause bodily harm and abandons charges alleging "dangerous" quality of devices – accused person now adequately treated for depression – whether proceedings before second judge misconceived – whether relied unduly on conclusions of Full Court – whether matter should be remitted to ACT Supreme Court – whether bail should be granted despite some degree of risk of future offences Bail Act (ACT) 1992 (ACT) ss 3, 5, 8, 9, 10(3), 12, 19, 20, 22, 23A, 39(5)(d), 40(b), 41, 42, 43, 44, 45, 55, 57AA Crimes Act 1900 (ACT) ss 19, 27(3)(e), 129(2) Magistrates Court Act 1930 (ACT) s 94 Supreme Court Act 1933 (ACT) ss 8, 13 Federal Court of Australia Act 1976 (Cth) s 24 Bail Act 1978 (NSW) ss 8A, 59 Bail Act 1985 (SA) s 10

Report of the Bail Review Committee (1976) (NSW Parliamentary Papers No. 46 of 1976)

Brouwer v Titan (1997) 73 FCR 241, 149 ALR 50, referred to Carr v Finance Corporation of Australia Ltd (No 1)(1981) 147 CLR 246, referred to CDJ v VDJ (1998) 72 ALJR 1548, referred to DPP v Kanfouche [1992] 1 VR 141, cited DPP v Hiep Huu Le (1998) 156 ALR 110, cited Farquar v Fleet (1989) 50 SASR 490, discussed Gray v Sweatman (1987) 45 SASR 517, referred to Green v Lynch (1983) 70 FLR 206, referred to Jure Maric v The Queen [1981] 2 NSWLR 100, cited Maric v R [1981] 2 NSWLR 100, cited R v Budiman (1997) 97 A Crim R 548 at 550, cited R v Connell (1990) 3 WAR 516, cited R v Hamill (1986) 25 A Crim R 316, distinguished R v Hilton (1987) 7 NSWLR 745, discussed R v Masters (1992) 26 NSWLR 450, discussed