ML - [2022] VSC 10 | CaseChat AU

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0001

IN THE MATTER of the Bail Act 1977 (Vic)

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IN THE MATTER of an application for bail by ML

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2022
DATE OF JUDGMENT:	21 January 2022
CASE MAY BE CITED AS:	Re ML
MEDIUM NEUTRAL CITATION:	[2022] VSC 10

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CRIMINAL LAW — Bail — Application for bail pending de novo appeal against sentence and conviction in County Court — Charges of persistent contravention of a family violence intervention order and contravening a family violence intervention order intending to cause harm or fear — Whether ‘exceptional circumstances’ or ‘compelling reason’ test applies — Magistrate erred in requiring applicant to show ‘exceptional circumstances’ — ‘Compelling reason’ test applicable — Possibility sentence will have been served at time of appeal —Compelling reason established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4C, 4D, 4E, 5AAAA; Criminal Procedure Act 2009 (Vic) s 265.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms. Rebecca Heley	Rolfe Criminal Law
For the Respondent	Dr. Jason Harkess	Office of Public Prosecutions

HIS HONOUR:

Introduction

This is an application for bail by ML (the ‘applicant’). An order for bail is sought pending his appeal against conviction and sentence for offences of persistent contravention of a family violence intervention order (‘FVIO’) and contravening a FVIO intending to cause harm or fear.

The applicant was sentenced for those offences on 14 December 2021 in the Magistrates Court to a total effective sentence of eight months’ imprisonment, with 125 days reckoned as time served. He filed a notice of appeal the following day. That appeal proceeding is listed on 9 February 2022 at Mildura County Court for first mention. The appeal itself is yet to be listed. The applicant’s sentence was originally thought to expire on 11 April 2022 but due to the allocation of Emergency Management Days that date is now likely to be during March 2022.

Procedural history

On 6 August 2021, the applicant was arrested by Detective Senior Constable Anthony Lee and charged with nine offences, being persistent contravention of a FVIO; stalking; contravening FVIO (six charges); and contravening a FVIO intending to cause harm or fear. He was remanded in custody.

On 16 August 2021 the applicant was refused bail at Mildura Magistrates’ Court on the basis that he failed to show a compelling reason to justify a grant of bail and posed an unacceptable risk of committing an offence whilst on bail, endangering the safety and welfare of any person and interfering with a witness or otherwise obstructing the course of justice. The applicant made further applications for bail on 24 August and 11 October 2021 which were refused on the basis that he failed to show a compelling reason and posed an unacceptable risk.

After a contested hearing on 3 and 6 December 2021,…

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.

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Details

Case: [2022] VSC 10
Decision Date: 21 January 2022

CaseChat Overview and Summary

The applicant, ML, applied for bail pending a de novo appeal against their conviction and sentence in the County Court for charges including persistent contravention of a family violence intervention order and contravening a family violence intervention order intending to cause harm or fear. The application was heard in the Magistrates’ Court of Victoria. The primary legal issue the court had to determine was whether the ‘exceptional circumstances’ or ‘compelling reason’ test should apply to the bail application, and whether the applicant had satisfied the applicable test.

The court held that the ‘compelling reason’ test, rather than the ‘exceptional circumstances’ test, was the appropriate test to apply in this case. The court found that the Magistrate had erred in requiring the applicant to demonstrate ‘exceptional circumstances’. The court determined that a compelling reason for bail existed because there was a real prospect that the applicant would have served their sentence by the time the appeal was heard. The court concluded that the applicant had established a compelling reason for bail, but did not demonstrate an unacceptable risk. Given the circumstances, the court granted bail with conditions.

The court's final orders included granting bail with conditions, such as electronic monitoring and regular check-ins with a bail supervisor. The applicant was also required to comply with specific terms to ensure public safety and the likelihood of attendance at the appeal. The decision underscores the importance of correctly applying the appropriate legal test in bail applications and the factors that influence the court's decision-making process in such cases.

Orders