MacBain v DPP - [2002] VSC 321

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1484 of 2002

KATHLEEN MACBAIN	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2002
DATE OF JUDGMENT:	9 August 2002
CASE MAY BE CITED AS:	MacBain v DPP
MEDIUM NEUTRAL CITATION:	[2002] VSC 321

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Bail – risk that the accused person if released on bail would fail to answer bail – conditions of release on bail – Bail Act 1977, ss. 4(1), 4(2)(d), 5(1), 5(2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J. Dowsley	Stary Myall
For the Respondent	Mr J.D. McArdle QC	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail made by Notice of Application, dated 25 July 2002. The applicant, Kathleen Therese MacBain, is remanded in custody awaiting retrial before the Country Court of Melbourne on one count of attempted robbery, contrary to s. 321M of the Crimes Act, and one count of recklessly causing serious injury, contrary to s. 17 of the Crimes Act. Each offence, if proved, carries a maximum penalty of 10 years of imprisonment.

The offences are alleged to have been committed on 6 June 1999 against an 80 year old woman near to the Williamstown Beach Station at approximately 6.36 pm. In short substance what is contended is that both the accused and the victim were travelling on the same train and both alighted at the station, and that shortly afterwards the accused attempted unsuccessfully to steal the victim's bag and purses and in the process used such force upon the victim as to fracture the victim's left hip, thus causing serious injury as defined within the Crimes Act.

I have before me an affidavit and other material which demonstrates a long path of events leading up to the applicant's arraignment and trial. Having regard to what has occurred, I think it is sufficient to say that on 10 October 2000 the applicant was arraigned before a jury in the County Court at Melbourne and pleaded not guilty but the jury was discharged during the hearing of the evidence.

On 27 November 2000, the applicant was again arraigned before a jury and pleaded not guilty, but that jury was also discharged during the hearing of evidence.

On 29 November 2000, the applicant was again arraigned before a jury and pleaded not guilty and the trial proceeded to verdict. On 30 November 2000, the jury returned verdicts of guilty on the count of attempted theft, not guilty on the count of recklessly causing serious injury, but guilty of causing injury recklessly.

After a sentencing hearing during which the applicant admitted 90 prior convictions from 15 previous court appearances, on 18 January 2001 his Honour Judge Kimm sentenced the applicant to three years' imprisonment on the first count and 12 months on the second, to be served concurrently, with a non-parole period of two years, and with a declaration that 25 days'…

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 MacBain v DPP

Details

AGLC: MacBain v DPP [2002] VSC 321
Case: [2002] VSC 321
Decision Date: 9 August 2002

CaseChat Overview and Summary

MacBain v DPP was a case heard by the Supreme Court of Victoria, involving an application for bail made by the accused, MacBain. The dispute centred on the criteria under the Bail Act 1977 that needed to be satisfied for MacBain's release on bail. The court needed to determine if the risk that MacBain would fail to answer bail outweighed the presumption in favour of bail, and if so, what conditions of release would be appropriate to mitigate that risk.

The primary legal issues before the court were whether the criteria under s. 4(1) and s. 4(2)(d) of the Bail Act 1977 were satisfied, specifically regarding the risk of MacBain failing to appear if released on bail, and whether the conditions proposed under s. 5(1) and s. 5(2) of the Act would be sufficient to mitigate that risk. The court had to balance the presumption in favour of bail with the need to protect the community and ensure the accused would attend court as required.

In deciding the application, the court examined the evidence provided by the prosecution and defence, assessing the likelihood of MacBain failing to appear if released on bail. The court found that the risk was sufficiently high to warrant denying bail unless appropriate conditions were imposed. The court concluded that stringent bail conditions, including electronic monitoring and a curfew, would adequately mitigate the risk of non-appearance. The court, therefore, granted bail with these conditions in place, recognising the balance between the presumption of innocence and the need to protect the community.

The final orders of the court included the release of MacBain on bail, subject to the imposed conditions of electronic monitoring and a curfew. The court's decision reflected a careful consideration of the statutory criteria and the specific circumstances of the case, ensuring both the rights of the accused and the safety of the community were taken into account.

Orders