R v Viavattene [2016] NSWSC 299

Supreme Court New South Wales

Medium Neutral Citation: R v Viavattene [2016] NSWSC 299 Hearing dates: 18 March 2016 Date of orders: 18 March 2016 Decision date: 18 March 2016 Jurisdiction: Common Law Before: Schmidt J Decision: Matter adjourned to 6 April 2016 for bail hearing. Catchwords: PROCEDURE – notice of motion – applicant in custody – application for further expedited bail hearing - no basis for further expedition – other orders sought not made Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Category: Procedural and other rulings Parties: Peter Viavattene (Applicant) Crown (Respondent) Representation: Solicitors: Director of Public Prosecutions (Respondent) File Number(s): 2016/59535 Publication restriction: None

EX TEMPORE Judgment 1. Mr Viavattene is in custody bail refused, having been charged under s 94 of the Crimes Act 1900 (NSW) with an offence of robbery, which carries a maximum penalty of 14 years imprisonment. He has made an application to this Court for release on bail, which was listed for hearing on 25 May. On 16 March, by motion filed that day in court on his behalf by his wife, he sought an order for expedition of the hearing of his bail application, as well as other orders, including an order for his immediate release on bail under s 49 of the Bail Act 2013 (NSW). 2. The circumstances of the alleged offending are that Mr Viavattene is alleged to have taken a mobile phone from an identified person on 12 February 2016. He has been in custody since arrest on 23 February. His application for bail was that day refused by the Local Court at Murwillumbah. 3. Having considered what appeared on the motion and supporting affidavit sworn by Mrs Viavattene and documents provided, including submissions which she advanced on Mr Viavattene's behalf, I granted expedition of the bail application to the earliest available date in the list, 6 April. I declined to hear the other orders sought in the motion ex parte. 4. Mr Viavattene then himself appeared at the adjourned hearing on 18 March, when he filed in court a further motion, supported by an affidavit he had sworn by which he pressed an order for further expedition and his immediate release. Those orders were opposed. 5. They were pressed by reference to various provisions of the Bail Act, which did not provide a basis for the orders Mr Viavattene sought. Otherwise Mr Viavattene relied on matters advanced in the affidavits as to the circumstances of his arrest, charge, the proceedings in the Local Court when he was bail refused and matters going to ongoing disputes which he has had with his neighbours and views which he holds as to the conduct of the police and the unfairness of the treatment he and members of his family have received in the Local Court at Murwillumbah. 6. Contrary to his submissions, Mr Viavattene has no right to release on bail under the Bail Act. Section 21 "Special rule for offences for which there is a right to release", does not apply to offences under s 94 of the Crimes Act, punishable as such offences are by a term of imprisonment. The Bail Act establishes a regime by which Mr Viavattene's application to this Court for release on bail must be determined. Both he and the Crown have a right to be heard on that application. Both must then be given an opportunity to put the relevant information before the Court. 7. Mr Viavattene is one of many applicants for bail. He has been granted expedition on the basis of what he has advanced as to his health, the difficult personal circumstances of his family and the concerns he has explained. But for one consideration, I took the view that the further expedition sought was not warranted. 8. Having heard from Mr Viavattene and bearing in mind the limited compass of what was disclosed by the material before the Court as to the alleged circumstances of his offending, it appeared to me that consideration should sensibly be given to whether the Crown would, in fact, oppose Mr Viavattene's application for bail, given the nature of his alleged offending and the likely sentence to be imposed upon him, if convicted. 9. It seemed to me that if the application was not to be opposed, justice and common sense would dictate that it be dealt with immediately, rather than Mr Viavattene being held longer in custody. The matter was stood down so that instructions could be sought. 10. On resumption the position was that the Court was advised that the application for bail would be opposed. Mr Viavattene again pressed his application for immediate release on bail. Among the submissions then advanced included that the Crown had to drop the charge laid against him because Mr Viavattene submitted that he had been charged under the wrong Act, that amounting to an error of law. Mr Viavattene was unable to identify what legislative scheme he contemplated ought to have been utilised to charge him. He explained his difficulties in custody, which must be accepted. Nevertheless, that an error of the kind which he asserts has occurred is not apparent. The laying of charges is a matter for the prosecutor. 11. He made some reference also to having been charged with armed robbery. That is incorrect. The charge is a charge of robbery under s 94, as I have explained. Mr Viavattene reiterated his concerns as to the position of his wife and children who he claims, like he, are victims of offending behaviour of others. He also explained his concerns as to the conduct of the DPP. 12. Mr Viavattene contends that he is entitled to release on bail having in mind matters to be considered on a bail application when the Court is assessing whether or not an applicant for bail poses an unacceptable risk. Those matters are specified in section 18(1). Mr Viavattene contends he has to be released on bail in order that he can represent himself, it being his intention to do so and not to avail himself of assistance available to him otherwise. 13. I am not satisfied as to any of the matters which he has advanced. As I have said, both parties are entitled to be heard. Mr Viavattene has had his application expedited. No basis for further expedition in the circumstances has been established. 14. The other orders sought in the motions were orders as to the conduct of the proceedings in the Local Court which are matters for the Local Court, not this Court to determine. They included an order as to the provision of transcript, the venue of the hearing and the quashing of the charge laid against Mr Viavattene. Accordingly, I decline to entertain those aspects of the motion. 15. For those reasons the bail application will adjourn for hearing on 6 April.