JUDGE:	ELLIOTT J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2020
DATE OF JUDGMENT:	27 April 2020
CASE MAY BE CITED AS:	Bail application by Che Ashton
MEDIUM NEUTRAL CITATION:	[2020] VSC 231

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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offences – Charges of aggravated burglary, rape and assault with intent to commit sexual offence – Crimes Act 1958 (Vic) ss 38(1), 42(1), 77(1)(b) – Significant ongoing delay caused by COVID-19 pandemic – Compelling reason established – Unacceptable risk not established by respondent – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4C and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Oldham	Slater & Gordon
For the Respondent	Mr D Glynn	Ms K Thomson, Solicitor for Public Prosecutions

HIS HONOUR:

A. Introduction

For the second time, the applicant, Che Ashton, is applying for bail, having been previously refused bail on 12 February 2020 by the Melbourne Magistrates’ Court.

As the applicant is accused of committing Schedule 2 offences under the Bail Act 1977 (Vic),[1] it is accepted by both parties that bail must be refused unless the applicant can satisfy this court that a compelling reason exists that justifies the grant of bail.
[1]Items 9, 11 and 22(b).

The applicant is charged with the following offences allegedly occurring on 5 November 2019: 1 count of aggravated burglary,[2] 4 counts of rape,[3] 1 count of assault with intent to commit sexual offence,[4] 1 count of sexual assault,[5] and 2 counts of aggravated assault of a female.[6]
[2]Crimes Act 1958 (Vic), s 77(1)(b).
[3]Crimes Act, s 38(1).
[4]Crimes Act, s 42(1).
[5]Crimes Act, s 40(1).
[6]Summary Offences Act 1966 (Vic), s 24(1)(a).

B. Procedural history

On 6 November 2019, the applicant was arrested. On 7 November 2019, the applicant was charged with the offences set out above.

The applicant initially commenced an application for bail on 3 December 2019. The application was adjourned and subsequently re-listed for 12 February 2020. Bail was refused. The magistrate held the applicant had failed to show a compelling reason. It was also held that the applicant was an unacceptable risk.

The applicant was assessed in December, 2019 by the Melbourne Magistrates’ Court as “not suitable” for the Court Integrated Services Program (known as “CISP”). He was again assessed as “not suitable” recently on the basis that the applicant evidenced no desire to engage in treatment supports within the community.[7]
[7]However, the court was informed that the applicant had given instructions that, if the court were to order that the applicant obtain support in this regard, he would comply with this condition of bail.

He has been on remand since 6 November 2019 and has…

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 Bail application by Che Ashton

Details

AGLC: Re Ashton [2020] VSC 231
Case: [2020] VSC 231
Decision Date: 27 April 2020

CaseChat Overview and Summary

Che Ashton applied for bail in the County Court of Victoria, where he was facing serious charges including aggravated burglary, rape, and assault with intent to commit a sexual offence under the Crimes Act 1958 (Vic). The application was made in the context of the ongoing COVID-19 pandemic, which had caused significant delays in court proceedings. The central issue before the court was whether the applicant met the criteria for bail under the Bail Act 1977 (Vic), given the delay in his case being heard and the potential impact of this delay on his right to a fair trial.

The court examined the statutory criteria for bail under the Bail Act 1977 (Vic) and considered the arguments presented by both parties. It found that the delay in the proceedings constituted a compelling reason for granting bail, as it had significantly impacted the applicant's right to a fair trial. The court also concluded that the risk of unacceptable harm to the community was not sufficiently established by the prosecution. In light of these findings, the court exercised its discretion to grant bail to the applicant, subject to certain conditions designed to ensure his appearance in court and to protect the community.

The court's reasoning was based on the principles of justice and fairness, recognising the applicant's right to a timely trial and the potential prejudice caused by the delay. It found that the delay was not due to any fault on the part of the applicant and that the risk to the community did not outweigh the benefits of granting bail. The court imposed conditions including regular check-ins with a bail supervision officer, a curfew, and restrictions on travel to mitigate any potential risk to the community. The decision underscored the importance of balancing the rights of the accused with the need to protect public safety.

Orders