Application for bail by DS - [2021] VSC 332

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2021 0119

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by DS	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2021
DATE OF RULING:	7 June 2021
CASE MAY BE CITED AS:	Application for bail by DS
MEDIUM NEUTRAL CITATION:	[2021] VSC 332

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CRIMINAL LAW – Bail – Applicant charged with attempt to pervert the course of justice, perjury and bail offences – Proposed bail to residential rehabilitation facility – Surety – Significant delay before trial – Exceptional circumstances established – Unacceptable risk not established – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Paul Kounnas, with Mr Emile Goldman	M.O.K. Law
For the Respondent	Mr Jim Shaw	Office of Public Prosecutions

HER HONOUR:

Introduction

The applicant, DS, was arrested and charged with offences flowing from her presence at an address in Oakleigh South on 6 December 2020, where a fatal shooting took place, and her subsequent interactions with homicide investigators who were investigating the crime.

She has been charged by Detective Senior Constable McGowan (‘the McGowan matter’) with two charges of attempting to pervert the course of justice,[1] (Charges 1 and 2) one charge of perjury,[2] (Charge 3) committing an indictable offence whilst on bail,[3] (Charge 4) and contravene a conduct condition of bail[4] (Charge 5).
[1]At Common Law.
[2]Pursuant to s 314 Crimes Act 1958 (Vic) (‘Crimes Act’).
[3]Pursuant to s 30A (1) Bail Act 1977 (Vic) (‘Bail Act’).
[4]Pursuant to s 30B of the Bail Act.

Charge 1 relates to 6 December 2020, being the day of the fatal shooting, and although the charge sheet only particularises that the applicant removed ‘items’ from the scene of a murder prior to police attendance, the informant’s report clarifies that charge is based on evidence that the applicant can be seen in CCTV footage arriving at the address without a yellow shopping bag, but leaving the scene with a yellow shopping bag after the alleged gunman left the scene. The police rely on inferential reasoning to assert that the bag contained evidentiary items of potential relevance to the crime scene.

Charges 2 and 3 each relate to an allegation that the applicant made a sworn statement to police on 7 December 2020, in which she told lies about what she witnessed, and what she did, at the time of the shooting, thereby deliberately misleading the police.

Charge 4 would only be made out if the applicant were convicted of any of Charges 1 to 3. Charge 5 relates to the fact that the applicant was on bail for other matters when she visited the South Oakleigh address where the fatal shooting occurred as her attendance was in breach of curfew conditions imposed as part of previous bail.

The McGowan charges are listed for committal hearing at the Melbourne Magistrates’ Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application for bail by DS

Details

AGLC: Application for bail by DS [2021] VSC 332
Case: [2021] VSC 332
Decision Date: 7 June 2021

CaseChat Overview and Summary

An application for bail was made by the defendant, DS, in the Magistrates' Court of Victoria. DS was charged with attempting to pervert the course of justice, perjury, and bail offences. The defendant sought bail to a residential rehabilitation facility. The primary legal issue before the court was whether the defendant met the criteria for bail under the Bail Act 1977, considering the nature and seriousness of the charges, the circumstances of the case, and the risk factors associated with granting bail. The court had to determine if exceptional circumstances existed to justify bail and whether the risk of unacceptable harm to the community was acceptable.

The court examined the principles and criteria set out in the Bail Act 1977, focusing on sections 1B, 3AAA, and 4A. The court considered the severity of the charges and the potential penalty if convicted. It assessed the risk factors, including the likelihood of reoffending and the potential harm to the community if released. The court also took into account the delay in the trial and the defendant's expressed willingness to participate in a rehabilitation program. The court found that exceptional circumstances were established due to the significant delay in the trial and the defendant's commitment to rehabilitation. The risk of unacceptable harm to the community was deemed acceptable, and bail was granted.

The court concluded that the defendant met the criteria for bail, taking into account the exceptional circumstances and the acceptable risk. The defendant was granted bail to a residential rehabilitation facility, with the condition that a surety be provided. The court emphasised the importance of the defendant's participation in the rehabilitation program and the need for strict compliance with bail conditions. The final orders included the defendant's release on bail, subject to the specified conditions.

Orders