Viavattene v R [2016] NSWCCA 87

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Viavattene v R [2016] NSWCCA 87 Hearing dates: 2 May 2016 Date of orders: 11 May 2016 Decision date: 11 May 2016 Before: Payne JA at [1]; McCallum J at [1]; Davies J at [1]; Decision: Bail granted Catchwords: BAIL – nature of Court's task in assessing bail concerns – where period of remand likely to exceed any custodial sentence that might be imposed Legislation Cited: Bail Act 2013 (NSW), ss 17(2)(a), 17(2)(c), 17(2)(d) s 67(1)(e), s 75 Crimes ACT 1900 (NSW) Criminal Appeal Act 1912, s 5F Criminal Procedure Act 1986 (NSW) ss 129(4)(c), 129(5) Cases Cited: R v Viavattene [2016] NSWSC 299 Category: Principal judgment Parties: Peter Stephen Viavattene (applicant) Crown (respondent) Representation: Counsel: Self (applicant) Ms V Lydiard (respondent)

Solicitors: DPP (respondent) File Number(s): 2016/5935 Publication restriction: Publication restricted removed – judgment published

Judgment 1. THE COURT: Peter Viavattene stands charged with an offence of robbery contrary to s 94 of the Crimes Act 1900 (NSW). The charge is based on an allegation that he pushed his neighbour in the chest and stole her iPhone after she began filming him during the course of a dispute between her husband and Mr Viavattene's wife. The offence is alleged to have been committed on 12 February 2016. The applicant was arrested on 23 February 2016 and has been in custody on remand since that date. The matter is next before the Local Court at Lismore for mention on 21 June 2016. 2. Having been refused bail in the Local Court, Mr Viavattene made a release application to the Supreme Court (invoking that Court's power under s 66 of the Bail Act 2013 (NSW)). The application was initially listed (in accordance with the Court's usual listing arrangements) to be heard on 25 May 2016. However, by notice of motion filed 10 March 2016, the applicant sought, among other things, to have the hearing of the application expedited. 3. Other relief sought by the notice of motion included an order "to quash the indictment and acquit Peter Viavattene in relation to the alleged offence under clause 8(1) of the Criminal Procedure Act 1986 and ss 129(4)(c) and 129(5) of the Criminal Procedure Act 1986" (prayer 6 in the motion). The statutory provisions referred to relate to the presentment of indictments in the Supreme Court or the District Court. 4. The motion came before Schmidt J as duty judge on 16 March 2016. Her Honour granted expedition of the hearing of the release application (bringing it forward to the bail list on 6 April 2016) but otherwise declined to grant the relief sought, for the reasons stated in a judgment published on 18 March 2016: R v Viavattene [2016] NSWSC 299. 5. The release application was heard by Bellew J on 6 April 2016 and, owing to the length of the applicant's oral submissions, continued into a second day, on 8 April 2016. His Honour dismissed the application, for the reasons stated in an ex tempore judgment given that day. 6. Mr Viavattene, who represents himself, has sought to bring three applications in this Court in respect of those matters, two purportedly by way of appeal against the decisions of Schmidt J and Bellew J referred to above, the third being a release application made directly to this Court. 7. The two applications seeking to challenge the decisions of Schmidt J and Bellew J were misconceived. The first was a hand-written application filed on 12 April 2016 seeking to appeal against the refusal to grant an order "quashing the indictment" as sought by order 6 in the notice of motion. On 19 April 2016, a second application was filed, effectively formalising the first. The second application (made on a Form VC, as contemplated by r 2 of the Criminal Appeal Rules) sought to invoke the Court's authority under s 5F of the Criminal Appeal Act 1912 (NSW) to determine an application for leave to appeal against an interlocutory judgment or order. 8. Those applications were misconceived in at least two respects. First, to the extent that the relief sought was directed to the indictment (specifically, the failure or refusal of Schmidt J and Bellew J to make an order in the terms of prayer 6 in the motion), the applications misconceived the procedure applicable in the criminal proceedings. Mr Viavattene contends that, as he is charged with an indictable offence, "the Local Court does not have jurisdiction"; that the time within which to present an indictment in accordance with s 129 of the Criminal Procedure Act 1986 (NSW) has passed and accordingly that he is entitled to be released immediately. The submission overlooks or else misconceives the provisions relating to indictable procedure and, in particular, the procedure for committal proceedings prescribed in part 2 of chapter 3 of the Criminal Procedure Act. 9. Secondly, to the extent that the applications were directed to the dismissal of the release application brought in the Supreme Court, they misconceived the scope of s 5F of the Criminal Appeal Act. The Court's authority under that section relevantly extends to interlocutory judgments and orders given or made in "proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court". The section is not concerned with interlocutory judgments or orders in bail proceedings. Prayer 6 in the Notice of Motion entailed the same misconception; any order challenging the indictment had to be sought in the criminal proceedings. 10. For those reasons, the Court declined to entertain those two applications. If it were necessary to do so, in respect of each application, the Court would have refused leave to appeal under s 5F for the same reasons. 11. The third application brought by Mr Viavattene is a further release application under the Bail Act consequent upon the refusal of the application brought in the Supreme Court, invoking this Court's power under s 67(1)(e) of the Act. The Court heard that application as a new application, as contemplated by s 75 of the Bail Act. 12. The Crown opposed the application. Facts alleged by the Crown 1. The following is a summary of the facts alleged by the Crown (which, of course, remain to be proved in the proceedings). The alleged victim of the offence is Ms Rebecca Mason, who lives with her partner, Mr McKinnon and their son on a property adjacent to a property owned and occupied by Mr Viavattene and his family. 2. On the evening of 12 February 2016 Mr McKinnon was in his backyard slashing trees that were overhanging the boundary between the properties. It is alleged that at about this time Mrs Viavattene began to shout at Mr McKinnon, demanding that he stop pruning the trees. 3. It is alleged that, a short time later, Mr Viavattene approached Mr McKinnon with a wooden baseball bat and then picked up a rock and raised it above his shoulder height, baulking to throw the rock at Mr McKinnon. 4. Hearing the shouting, Ms Mason, who was on the front balcony of her property, came into the back yard. Mr McKinnon asked her to film the incident. She approached Mr Viavattene and Mr McKinnon, who were facing each other in a stand-off, and began filming with her iPhone. 5. It is alleged that Mr Viavattene then dropped the rock, lunged forward towards Ms Mason and snatched the phone from her, causing her to fall backwards into a tree, sustaining abrasions to her shin and index finger. 6. The Crown alleges that Mr Viavattene then ran back into his house, taking the phone. Ms Mason then called the police. Mr Viavattene and his family were seen driving from the scene approximately 10 minutes later.