Application for bail by JL - [2020] VSC 785

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2020 0292

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by JL	Applicant

---

JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2020
DATE OF JUDGMENT:	24 November 2020
CASE MAY BE CITED AS:	Application for bail by JL
MEDIUM NEUTRAL CITATION:	[2020] VSC 785

---

CRIMINAL LAW – Application for bail – Charges of committing Schedule 2 offence whilst on a Community Corrections Order for a Schedule 2 offence – Allegations of family violence – Offending with a knife - availability of place at residential rehabilitation facility – Anticipated delay due to COVID-19 – exceptional circumstances not established – unacceptable risk established - Bail Refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Antos	Bowler, Man & Co
For the Respondent	Ms B Cowley	Victoria Police

HER HONOUR:

Introduction

JL (‘the applicant’) has been on remand since 22 June 2020 for charges relating to family violence against his former intimate partner, ‘SS’. The applicant is charged by Detective Senior Constable Johnson (‘the Informant’) with the following:

(a) Charge 1: Reckless conduct endangering serious injury on 8 March 2020 (contrary to s 23 of the Crimes Act 1958 (Vic))(‘Crimes Act’);

(b) Charge 2: Intentionally cause injury on 8 March 2020 (contrary to s 18 of the Crimes Act);

(c) Charge 3: Recklessly Cause Injury on 8 March 2020 (contrary to s 18 of the Crimes Act);

(d) Charge 4: Assault with a weapon on 8 March 2020 (contrary to s 23 of the Summary Offences Act 1966);

(e) Charge 5: Using controlled weapon without excuse on 8 March 2020 (contrary to s 6(1) of the Control of Weapons Act 1990);

(f) Charge 6: Making threats to kill on 8 March 2020 (contrary to s 20 of the Crimes Act);

(g) Charge 7: Contravening a family violence intervention order (‘FVIO’) by being within 5 metres of SS on 7 March 2020 (being the complainant in this case)(contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic)(‘FVP Act’);

(h) Charge 8: Contravening a family violence intervention order by SS on 8 March 2020 (being the complainant in this case)(contrary to s 123(2) of the FVP Act);

(i) Charge 9: Contravening a family violence intervention Order assaulting SS with a knife and threatening to kill her, intending to cause harm or fear by on 8 March 2020 (contrary to s 123A(2) of the FVP Act); and

(j) Charge 10: Possessing a drug of dependence on 22 June 2020 (alleged to be heroin)(contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)).

Before making this application, the applicant made two unsuccessful applications for bail in the Ringwood Magistrates’ Court.[1] He was legally represented on both occasions. His first application[2] was refused on the basis…

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 JL

Details

AGLC: Application for bail by JL [2020] VSC 785
Case: [2020] VSC 785
Decision Date: 24 November 2020

CaseChat Overview and Summary

The applicant, JL, applied for bail in the County Court of Victoria following their arrest and charge of committing an offence while on a Community Corrections Order for a previous offence. The charges included allegations of family violence and the use of a knife. The matter came before the court which had to determine whether to grant or refuse bail under the Bail Act 1977 (Vic). The key legal issues were whether the exceptional circumstances existed to warrant a departure from the general rule that bail should be granted, and whether there was an unacceptable risk to the community if bail were granted. The court also considered the availability of a residential rehabilitation facility and the anticipated delays due to the COVID-19 pandemic.

The court examined the nature of the charges and the circumstances surrounding the alleged offences. It found that the offences, if proven, were serious and involved allegations of family violence and the use of a knife, which indicated a potential risk to the community. The court also noted that the applicant had previously breached a Community Corrections Order, which suggested a lack of compliance with court-imposed conditions. The court did not find the exceptional circumstances to be established, as the availability of a residential rehabilitation facility did not outweigh the seriousness of the charges. The anticipated delay due to COVID-19 was considered, but the court found that it did not constitute exceptional circumstances.

Having considered the factors set out in the Bail Act 1977 (Vic), the court found that there was an unacceptable risk to the community if bail were granted. The court was satisfied that the applicant posed a significant risk of reoffending, particularly in light of the serious nature of the charges and the previous breach of a Community Corrections Order. The court therefore refused the application for bail. The court's decision was based on a careful consideration of the relevant factors and the potential risk to the community, and it was consistent with the provisions of the Bail Act 1977 (Vic). The court did not make any orders regarding the applicant's continued detention.

Orders