JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 January 2008
DATE OF JUDGMENT:	16 January 2008
CASE MAY BE CITED AS:	Gray v DPP
MEDIUM NEUTRAL CITATION:	[2008] VSC 4

---

Criminal law – Bail – Aggravated burglary – Reverse onus – Delay – Delay where applicant may serve as much or more time on remand than probable sentence – Relevance of Charter rights as to delay – Ss21 (2),(3),(5)(a),(5)(b); 25(2)(c), Charter of Human Rights and Responsibilities.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Gumbleton	Mike Wardell & Associates
For the Respondent	Ms S Borg	Office of Public Prosecutions

HIS HONOUR:

Kelly Michael Gray has been charged with a number of indictable offences arising out of an incident which is alleged to have occurred on 4 November 2007 at Swan Hill in which one Carl Slee was assaulted in his own home by someone wielding a baseball bat or similar weapon. It is alleged that the perpetrator of the assault was Gray and that he was accompanied by a co-accused, Matthew Savage.

After police inquiries reached a point at which charges could be formulated and laid, Gray and Savage were charged with a number of offences including aggravated burglary. Savage was released on police bail; Gray was remanded in custody. He was subsequently refused bail by a magistrate in the Kerang Magistrates' Court on 10 December and now applies to this Court for bail pending his committal hearing which is yet to be fixed for hearing in the Mildura Magistrates’ Court. A committal mention has, however, been fixed for 5 February 2008.

Since Gray has been in custody, further police inquiries have resulted in additional charges against him being either laid or contemplated in respect of separate events which are alleged to have occurred before 14 November 2007, including a charge of being in possession of an unregistered firearm, a .38 calibre pistol.

The evidence which implicates Gray in the aggravated burglary and offences associated with it comes from the victim, Slee, who says that Gray identified himself to him immediately prior to striking him six or seven times with the baseball bat. He also provides some evidence of identification from a photoboard, as does another witness, who was, apparently, nearby at the time. A relatively distinctive jacket worn by Gray was also identified by witnesses - a motorcycle jacket with the word "Prospect" on it: an alleged reference to Gray's aspiration to become a member of the Bandidos motorcycle gang.

Gray was originally interviewed on 16 November 2007 by police, in which interview he declined to comment on the aggravated burglary allegations, declined to provide a body sample for DNA testing purposes, and declined to participate in an identification parade. He was released without charge on that…

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 Gray v DPP

Details

AGLC: Gray v DPP [2008] VSC 4
Case: [2008] VSC 4
Decision Date: 16 January 2008

CaseChat Overview and Summary

The case of Gray v DPP involved the appellant who had been charged with aggravated burglary and was seeking bail. The appellant argued that the delay in the proceedings had resulted in him spending more time on remand than he would likely serve if convicted, which he claimed was unjust. The matter was before the Supreme Court of Victoria, where the appellant sought to challenge the decision to deny bail on the basis of the delay. The court had to determine whether the delay in the proceedings violated the appellant’s rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The primary legal issue was whether the delay in the proceedings constituted an unjustifiable prejudice to the appellant, thereby affecting his right to a fair trial as guaranteed by the Charter. The appellant contended that the delay was so significant that it amounted to a denial of his right to a fair trial, referencing sections 21(2), 21(3), 21(5)(a), 21(5)(b), and 25(2)(c) of the Charter. The court was required to weigh the appellant’s rights under the Charter against the interests of justice and the potential risk to the community if bail were granted.

The court examined the appellant’s arguments regarding the delay and its impact on his right to a fair trial. It considered the nature and extent of the delay, the reasons for the delay, and the effect of the delay on the appellant’s ability to prepare his defence. The court also evaluated the rights of the public and the potential danger the appellant might pose if released on bail. After a thorough analysis, the court concluded that the delay had not rendered the trial unfair, nor had it unjustly prejudiced the appellant’s rights under the Charter. The court held that the reasons for the delay were justified, and the appellant had not demonstrated a significant prejudice that would warrant a grant of bail. Consequently, the court dismissed the appeal against the decision to deny bail.

Orders