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Bail application of ML

Bail application of ML

Case [2022] VSC 76 22 February 2022

Bail

Criminal Liability

Exceptional Circumstances

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0022

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

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2022
DATE OF RULING:	22 February 2022
CASE MAY BE CITED AS:	Bail application of ML
MEDIUM NEUTRAL CITATION:	[2022] VSC 76

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CRIMINAL LAW – Bail – Applicant is a Yorta-Yorta man – Longstanding drug addiction – Family violence offending – Availability of culturally appropriate residential rehabilitation – History of offending whilst on bail and Community Corrections Orders – Whether Exceptional Circumstances made out – Whether unacceptable risk – Bail granted with conditions – Bail Act 1977 ss 1B, 3A, 3AAA, 4AA, 4E(1)(a), 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Hooper	Victoria Legal Aid
For the Respondent	Ms A Buzo	Victoria Police

HER HONOUR:

Introduction

The applicant, Malcolm L, is a 48 year old man of Aboriginal descent. On 28 December 2021, Malcolm L was arrested and remanded on the following charges:

(a) Where the informant is Senior Constable Ashley(‘first Ashley matter’):

(i) Charge 1: Contravene family violence intervention order (‘FVIO’) on 10 November 2021 contrary to s 123(2) of the Family Violence Protection Act 2008 (‘FVP Act’).

(b) Where the informant is Amy Masunu, Community Corrections)(‘Masunu matter’):

(i) Charge 1: Contravene Community Corrections Order (‘CCO’) on 12 and 18 November 2021.

(c) Where the informant is again Senior Constable Ashley (‘second Ashley matter’):

(i) Charges 1 – 3, and 7 – 10: Contravene FVIO on 22, 23, 24, 25, 26, 27, and 28 December 2021 contrary to s 123(2) of the FVP Act;

(ii) Charge 4: Recklessly cause injury on 24 December 2021 contrary to s 18 of the Crimes Act 1958;

(iii) Charge 5: Assault by kicking on 24 December 2021 contrary to s 24(1) of the Summary Offences Act 1966;

(iv) Charges 6 and 11: Aggravated assault of female on 24 and 28 December 2021 contrary to s 24(1)(a) of the Summary Offences Act 1966;[1]
[1]Charge 11 appears to list the incorrect section of the Summary Offences Act 1966.

(v) Charge 12: False imprisonment (common law) on 28 December 2021;

(vi) Charge 13: Persistent contravention of FVIO causing apprehension of fear between 22 and 28 December 2021 respectively, contrary to s 123A(2) of the FVP Act; and

(vii) Charge 14: Persistent contravention of FVIO between 22 and 28 December 2021 contrary to s 123A(1) of the FVP Act.

It appears that in respect of the second Ashley matter, there are a number of charges that are laid as alternatives.

The applicant was refused bail in the Shepparton Magistrates’ Court on 24 January 2022. The above matters are all listed on 1 March 2022 at the Shepparton Magistrates’ Court. The Ashley matters are listed for Contest Mention and the CCS matter is listed for a breach…

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 of ML

Details

AGLC: Bail application of ML [2022] VSC 76
Case: [2022] VSC 76
Decision Date: 22 February 2022

CaseChat Overview and Summary

The bail application of ML involved the applicant, a Yorta-Yorta man, facing criminal charges. The dispute centred on whether ML should be granted bail, given his history of drug addiction, family violence offences, and prior failures on bail and under Community Corrections Orders. The matter was heard in the Magistrates' Court of Victoria.

The primary legal issues were whether ML's history of offending and failure to adhere to bail conditions constituted unacceptable risk under the Bail Act 1977, and if there were exceptional circumstances warranting bail. The court had to weigh the need to protect the community against ML's right to liberty. Additionally, the court examined the availability of culturally appropriate residential rehabilitation as a condition of bail.

The court acknowledged ML's history of drug addiction and offending but recognised his willingness to engage in culturally appropriate rehabilitation. It found that ML's history of offending while on bail and under Community Corrections Orders did not necessarily predict future behaviour. The court also noted that ML's family and community support, and his participation in a culturally appropriate program, constituted exceptional circumstances. Ultimately, the court concluded that the unacceptable risk threshold was not met, and bail was granted subject to strict conditions, including residence in a culturally appropriate rehabilitation facility.

The final orders included that ML be granted bail, subject to conditions such as residence at a specified rehabilitation facility, regular drug testing, and compliance with a curfew. These conditions aimed to balance ML's right to liberty with the need to protect the community and facilitate his rehabilitation.

Orders