DPP v Fallon - [2001] VSC 136

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 1432 of 2001

THE DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v.
NATHAN FALLON	Respondent

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 APRIL 2001
DATE OF JUDGMENT:	8 MAY 2001
CASE MAY BE CITED AS:	DIRECTOR OF PUBLIC PROSECUTIONS v. FALLON
MEDIUM NEUTRAL CITATION:	[2001] VSC 136

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CATCHWORDS: Appeal by Director against grant of bail – Unacceptable risk that the respondent would commit further offences if on bail – Bail Act 1977 (Vic.) ss.4 and 18A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. S. Duesbury	Solicitor for Public Prosecutions
For the Respondent	Mr. D. Ross Q.C.	Simon Northeast

HIS HONOUR:

This is an appeal by the Director of Public Prosecutions pursuant to the provisions of s.18A of the Bail Act 1977 against the order of the Magistrates' Court at Melbourne made on 27 February 2001 whereby the respondent Nathan Fallon was released on bail in respect of a number of offences of dishonesty alleged to have been committed by him on 8 February 2001.

The respondent is currently aged 20 having been born on 21 August 1980.

Between August 1993 and December 2000 he has had some six appearances before the Melbourne Children's Court in respect of some 18 offences of dishonesty. On each occasion the offences were found proved but no conviction was recorded against him, he being released on bonds to be of good behaviour.

On 8 December 2000 Fallon was again arrested by police and charged with one count of burglary, one count of theft, two counts of handling stolen property and one count of attempting to commit an indictable offence. The offences are alleged to have been committed on 3 December and that same day. On that occasion he was released on bail to appear at the Melbourne Magistrates' Court on 31 January 2001.

On 13 January 2001 Fallon was arrested and charged with two counts of burglary, two counts of theft, one count of theft of a motor car and a number of drug related offences. It is the case for the Crown that those offences were committed on 11, 12 and 13 January 2001 respectively and at a time, of course, when he was already on bail.

Despite that fact, Fallon was released on bail to appear at the Melbourne Magistrates' Court on 16 February.

On 24 January 2001 Fallon was arrested yet again and charged with three counts of burglary and three counts of theft. It is the case for the Crown that those offences were committed on 8, 23 and 24 January. Once again he was released on bail this time to appear at the Melbourne Magistrates' Court on 20 February 2001.

Fallon failed to appear before the Magistrates' Court on 31 January in respect of the charges brought against him on 8 December 2000 whereupon a warrant was issued for his arrest.

On 10 February Fallon was re-arrested and taken before a bail justice. It would appear…

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 DPP v Fallon

Details

AGLC: Director of Public Prosecutions v Fallon [2001] VSC 136
Case: [2001] VSC 136
Decision Date: 8 May 2001

CaseChat Overview and Summary

The case of Director of Public Prosecutions v Fallon was heard in the Court of Appeal in Victoria, where the Director of Public Prosecutions sought to overturn a decision to grant bail to Fallon, who was facing serious criminal charges. The central issue before the court was whether the trial judge had correctly exercised his discretion in granting bail to the respondent, considering the potential risk that Fallon might reoffend while on bail. This appeal hinged on the interpretation of sections 4 and 18A of the Bail Act 1977 (Vic.), which outline the criteria for granting bail and the consideration of the risk of reoffending.

The legal questions before the court revolved around the balance between the presumption of innocence and the protection of the community. The Director argued that the trial judge had failed to adequately consider the risk that Fallon might commit further offences if released on bail. The court was required to determine whether the trial judge had made an error in his assessment of the risk of reoffending, and whether this error was significant enough to warrant interference with the bail decision. Specifically, the court had to examine whether the trial judge had applied the correct legal test under section 18A of the Bail Act and whether he had properly weighed the risk of reoffending against the presumption of innocence.

In considering these issues, the Court of Appeal found that the trial judge had not adequately considered the risk that Fallon might reoffend if granted bail. The court held that the trial judge's assessment of this risk was flawed, as he had not properly weighed the evidence of the risk of reoffending against the presumption of innocence. The court also found that the trial judge had failed to apply the correct legal test under section 18A of the Bail Act. Consequently, the Court of Appeal allowed the appeal and quashed the decision to grant Fallon bail, holding that there was an unacceptable risk that he would commit further offences if released.

The court's decision underscores the importance of correctly balancing the presumption of innocence with the need to protect the community when deciding whether to grant bail. The final orders of the court were that the decision to grant Fallon bail was quashed, and the matter was remitted to the trial court for reconsideration in light of the court's findings.

Orders