DPP v Basic [2008] NSWCA 361 (12 December 2008)

Last Updated: 16 February 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
DPP v Basic [2008] NSWCA 361


FILE NUMBER(S):
40428/08

HEARING DATE(S):
12 December 2008

JUDGMENT DATE:
12 December 2008

EX TEMPORE DATE:
12 December 2008

PARTIES:
Director of Public Prosecutions
Dennis Basic

JUDGMENT OF:
Tobias JA James AJA Price AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 17682001/08

LOWER COURT JUDICIAL OFFICER:
Grove J

LOWER COURT DATE OF DECISION:
27 November 2008


COUNSEL:
A: S Higgins
R: S Grant

SOLICITORS:
A: C Everson
R: Dean Cole & Associates, Melbourne

CATCHWORDS:
CRIMINAL LAW – procedure – bail – before trial – respondent’s incarceration in NSW – family ties and legal defence based in Victoria – warrant for respondent’s arrest issued in Victoria – respondent’s appearance at trial in NSW may require application under Prisoners (Interstate Transfer) Act 1982 – whether exceptional circumstances under Bail Act 1978 s 9D

LEGISLATION CITED:
Bail Act 1978 section 9D
Corrections Act 1986 (Vic) section 77
Prisoners (Interstate Transfer) Act 1982


CASES CITED:


TEXTS CITED:


DECISION:
1. Application for review refused;
2. Grant of bail made by Grove J on 27 November 2008 confirmed subject to the conditions which his Honour imposed;
3. Conditions 2, 3 and 9 to be suspended for so long as the respondent is in custody in Victoria.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40428/08

TOBIAS JA

JAMES AJA

PRICE AJA

Friday 12 December 2008

DIRECTOR OF PUBLIC PROSECUTIONS v DENNIS BASIC

Judgment

1 TOBIAS JA: Before the court is an application by the Deputy Director of Public Prosecutions dated 8 December 2008 for review of the decision of Grove J made on 27 November 2008 acceding to an application for bail by the respondent, Dennis Basic.

2 On 3 October 2008 the Director of Public Prosecutions charged Mr Basic with two relevant offences, namely, that between 25 February 2007 and 26 May 2007 at Sydney in the State of New South Wales and elsewhere he did conspire with Stephen Wayne Spaliviero (Spaliviero) and Michael Selim (Selim) to murder Maurice Melville (Melville). The second was that between the same dates Mr Basic did conspire with the two persons to whom I have referred to murder Darren Cameron (Cameron). Each of Melville and Mr Cameron were critical witnesses in support of a charge by the Director of Public Prosecutions against Spaliviero that he knowingly took part in the manufacture of an amount of a prohibited drug, namely, Ecstasy, which was not less than the large commercial quantity applicable to that drug. There were other charges against Spaliviero which are not presently relevant.

3 The Crown case against Mr Basic is contained relevantly in a document dated 3 October 2008 headed Crown Case Statement prepared by Mr Craig Everson of the Crown Prosecutor's Chambers in Sydney and which, so far as Mr Basic is concerned, contains relevant allegations against him in paragraphs 30, 32, 49 to 52, 54 and 55.

4 In a further document provided to the Court and headed “Outline of Facts” there is a repetition of the material contained in the paragraphs on the Crown Case Statement to which I have referred, and which also sets out the evidence, the nature of the identification of the witness and other documentary evidence in support of the allegations in question.

5 Essentially the Crown's case is that in late February 2007 Spaliviero, whilst in custody, asked his girlfriend, Charlotte Lindstrom (Lindstrom), to arrange a meeting with Mr Basic which occurred and at which Lindstrom handed to Mr Basic two sealed notes provided to her by Spaliviero, together with the sum of $40,000 in cash. It was alleged that Mr Basic told Lindstrom that he would do what Spaliviero wished him to do provided he received $100,000 and a pill press. On 13 March 2007, so it is alleged, at Spaliviero's request Lindstrom gave Mr Basic a further $60,000.

6 It would appear on the Crown case that it is alleged that the notes that were given by Lindstrom to Mr Basic contained a request or instructions from Spaliviero to Mr Basic to arrange the execution of the witnesses Melville and Cameron. However, whether that is so or not remains doubtful given that the notes are apparently no longer in existence and there is no-one apart from Spaliviero and Mr Basic who is able to give evidence as to their contents. Certainly Lindstrom cannot, as apparently her evidence was that she was unaware of their contents and did not open them before handing them to Mr Basic.

7 Lindstrom met with Mr Basic again on 21 May 2007 when she received from him a bag containing $70,000 in cash. It is asserted that on that occasion Lindstrom and Mr Basic proceeded to the former’s car, which was parked in the Angel Place Car Park in Sydney. Lindstrom then approached the car park attendant and asked if she could have some mail directed to him (Basic). She provided the attendant with Mr Basic’s address, so it is alleged, in order that he could send all the information he had gathered to that address to be given to her (Lindstrom). The information in question was, it is alleged, information obtained by Mr Basic either through himself or through a person with whom he was associated, Selim, containing details of the premises at which the witnesses Melville and Cameron could be found, including photographs of them.

8 As the primary judge indicated in his judgment, Mr Basic does not deny that he received the money from Lindstrom but says that it was given to him in order to assist in the preparation of Spaliviero's defence. His Honour considered that that was not a matter upon which he could make any determination, but he observed that it was an arguable proposition.

9 The overall picture his Honour formed on the material which was before him, and which is before us, was that there were triable issues and that he was unable to reach any useful conclusion in saying that the Crown case was either strong or weak. Speaking for myself, I would not necessarily agree with that conclusion. I would take the view that the Crown case is certainly stronger than 50%, but on the other hand one could not say that it was overwhelming.

10 It was common ground before his Honour, as it is before us, that Mr Basic was only entitled to bail if he could establish exceptional circumstances within the meaning of s 9D of the Bail Act 1978.

11 His Honour considered that there were such circumstances by virtue of the delay which had occurred from the time that Mr Basic was arrested and placed in custody at the end of May 2007 until his proposed trial which has now been set down for 1 June 2009.

12 His Honour noted that Mr Basic had been in custody at the time of the application before him for a period in the order of eighteen months, and that if bail was not granted he would remain in custody until the trial commenced in June 2009 and ended in October 2009 upon the basis of the Crown's estimate that it was likely to last sixteen weeks.

13 One of the reasons, as I understand it, for this delay is that in August this year it was only proposed that the conspiracy charges against the three accused would be heard; that is, the conspiracy to murder charges, and that the agreed estimate of the trial was that it would last one and a half to two weeks. Had an arraignment followed it could be anticipated that the trial would take place either late this year or early next year. However, in September of this year, some sixteen months after the arrest of Mr Basic, the Crown indicated for the first time by the despatch of the draft indictment that it was its intention to prefer five counts, including the counts to which I have referred against Spaliviero, and including two further counts against Spaliviero to the effect that he solicited a person known as AD to murder both Melville and Cameron.

14 Accordingly, this change of heart on the part of the Crown in relation to the contents of the indictment has the consequence that instead of the trial of Mr Basic taking place late this year or early next year, there would be a further delay of some six months before it commenced and some ten months before it concluded. His Honour therefore considered that that delay constituted exceptional circumstances.

15 His Honour was further of the view that the bail conditions that he proposed to impose were such that any risk of Mr Basic removing himself from the jurisdiction was unlikely. In particular, his Honour noted that one of the conditions was that the Mr Basic was to reside at his wife's home with his two very young children who he had hardly seen since each of them was born due to his incarceration, and that he had a very close family relationship not only with his own family but also with that of his wife. His father-in-law was a relatively well-known builder in Melbourne who had offered to employ Mr Basic during the period that he was on bail, employment that he sought in order to earn money for the purpose of funding his defence.

16 A further matter which was of concern to his Honour was that Mr Basic was presently incarcerated at Lithgow, his defence team was Melbourne based, and his wife who with the two children wished to visit him regularly were finding extreme difficulty in doing so having to travel not only from Melbourne to Sydney but also to Lithgow. That also increased the time that his lawyers were engaged in seeking instructions from him which added to the expense of his defence.

17 His Honour, therefore, granted bail subject to the following conditions:

“1. To be of good behaviour.

2. To report to the OIC of Police Station at Frankston, Victoria daily between the hours of 7am-7pm unless in Sydney attending court.

3. Reside at 10 Fernshaw Place, Mt Eliza and be within those premises between the hours of 8pm and 6am and present himself at the door to police if they call to check his presence.

4. Not to associate or in any way communicate or attempt to communicate with directly or indirectly any Crown witnesses or co-accused.

5. Not to enter New South Wales unless to attend Court when required.

6. To surrender his passport to Det Sen Constable Hancock forthwith.

7. To stay away from all international points of departure from the Commonwealth of Australia.

8. To give an undertaking not to apply for any new passport or travel documents during the currency of bail.

9. To appear at the Supreme Court of NSW on 9/3/09 and thereafter from time to time as directed.

10. To enter into an agreement, without security, to forfeit the sum of $10,000 if he fails to comply with the bail undertaking.

11. That 3 person(s) enter into an agreement or agreements, and deposit acceptable security to forfeit the sum of $600,000.00 in total if the accused fails to comply with the bail undertaking.

Details of surety money for $600,000.00

11 (a) That one further or two jointly person or persons enter an agreement with security to forfeit the sum of $100,000 if the apt fails to comply with his bail undertaking.

(b) That one acceptable person, other than the apt enter into an agreement and deposit acceptable security to forfeit the sum of $500,000 if the apt fails to comply with his bail undertaking.”

18 It is necessary at this point to mention matters that were not before the primary judge but are now before us. At the time that he was arrested at the end of May 2007, Mr Basic was on parole having been convicted on 30 August 2005 of the offence of armed robbery in respect of which he was sentenced to a total term of imprisonment of four years with a non-parole period of 18 months.

19 On 16 August 2006 the Adult Parole Board of Victoria made an order that resulted in him being released on 21 August 2006. As I have said, he was, therefore, on parole at the time of the alleged offences in question. As a consequence of his arrest at the end of May 2007 and his extradition to New South Wales whereby he arrived in Sydney on 5 June 2007, the Victorian Parole Board on 13 June 2007 cancelled Mr Basic’s parole and issued a warrant for his arrest. As he was already incarcerated in New South Wales that warrant has, for obvious reasons, not been executed.

20 The ground upon which the parole was cancelled was that Mr Basic was in breach of one of his parole conditions, namely, that he was not to leave the State of Victoria without the written permission of the regional manager. It is apparent that he was in breach of that condition when he was in Sydney between February and May 2007 without advising and receiving the approval of the appropriate officer of the Adult Parole Board.

21 It is, therefore, apparent that if bail is confirmed, Mr Basic will return to Melbourne and, in accordance with the bail conditions set by Grove J and will be required to report to the officer in charge of the police station at Frankston immediately upon his return. There is little doubt that once he does so he will be arrested and the warrant to which I have referred will be executed and he will once more be placed in custody.

22 Two matters arise out of the foregoing. The first is that we have been informed by Mr Basic's counsel that under s 77 of the Corrections Act 1986 of Victoria where an Adult Parole Board has cancelled a prisoner's parole it may at any time by further order revoke that cancellation and on such an order having effect the parole order revives: sections 77(2) and (3). We were informed that in the event that Mr Basic's bail is confirmed today he will be released next Monday and returned to Melbourne immediately and on that day or the following day he will, as I have noted, once again be taken into custody.

23 However, we have also been informed that the Adult Parole Board may well convene within a matter of days in order to consider whether it should make an order under section 77(2) to revoke the cancellation order made by it on 13 June 2007. In that event Mr Basic would be released upon the conditions of the grant of bail imposed by Grove J.

24 The Crown, however, has pointed to a problem that may arise in the event that he is not so released pursuant to the revocation of the cancellation order. Apparently, if Mr Basic is placed back into custody in Victoria then his return for trial in New South Wales would need to be the subject of an application under the Prisoner’s Interstate Transfer Act. We were informed that applications under that Act require the approval of the Attorneys General of both the requesting State and the State in which the prisoner is held and that proceedings under this Act take a minimum of two months. Any such application would, therefore, need to be commenced expeditiously to ensure the attendance of Mr Basic at his next appearance in Sydney in March 2009.

25 I note that that appearance is for the purpose of an application which has been foreshadowed by him that his trial in relation to the two charges of conspiracy to murder be separated from the other charges in the draft indictment that relate solely to Spaliviero.

26 In my view, notwithstanding that I am of the opinion that the Crown case against Mr Basic is stronger than was considered to be the case by Grove J, nevertheless the circumstances of the present case are such as to justify the description of exceptional for the reasons that his Honour gave. If it be the case that it is necessary, in the event that the cancellation of his parole is not revoked, for an application to be made under the Prisoner’s Interstate Transfer Act then that is a matter for the authorities in this State. I do not consider that the bureaucratic delays that might be involved in the making of such an application should be a reason why bail should be refused in the present case.

27 It is a matter for the Crown authorities to ensure that any application under that Act is made with expedition and that it is treated by those who assess it with similar expedition so as to ensure that there is no further delay in relation to the trial of Mr Basic whether in conjunction with the charges against Spaliviero or not. There is no reason why he should be prejudiced by that type of delay.

28 As I have also indicated, the evidence establishes that Mr Basic has strong family ties in Melbourne and has significant reason to spend time with his family and to obtain funds by seeking employment with his father-in-law for the purposes of enabling his defence to be properly funded. True it is that if the cancellation of his parole is not revoked he will remain in custody but he will remain in custody in Melbourne and, therefore, his family as well as his legal representatives will be able to obtain much easier access to him than would be the case if he continued to be incarcerated in Lithgow or even in Sydney.

29 Accordingly, for the foregoing reasons, in my opinion the application for review should be refused and the grant of bail made by Grove J on 27 November 2008 should be confirmed subject to the conditions which his Honour ordered. I would only add to those conditions a further condition, namely, that compliance by Mr Basic with conditions 2, 3 and 9 shall be suspended for so long as Mr Basic is in custody in Victoria.

30 JAMES AJA: I agree with the judgment of his Honour the presiding judge.

31 PRICE AJA: I agree with Tobias J’s orders.

32 TOBIAS JA: The orders of the Court will be as I have proposed.

**********

LAST UPDATED:
10 February 2009