Olaa v The Queen - [2013] VSC 604

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2013 0187

IN THE MATTER of the Bail Act, 1877 (Vic)

and

IN THE MATTER of an application for bail by MOSES OLAA

---

JUDGE:	Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2013
DATE OF RULING:	1 November 2013
CASE MAY BE CITED AS:	Olaa v R
MEDIUM NEUTRAL CITATION:	[2013] VSC 604

---

CRIMINAL LAW – Bail – Show cause – Subsequent contact with victim in breach of Intervention Order and conditions of police bail – Discretionary considerations – Bail granted on conditions – ss 4(2)(d), 4(4) Bail Act 1977 (Vic).

---

APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr A. Tinney SC

Ms S. Isaacs

Office of Public Prosecutions

For the Respondent

Mr D. Gibson

Ms N. Jeronimus

Victoria Legal Aid

HIS HONOUR:

The applicant Moses Olaa applies for bail. He is required to show cause why his detention in custody is not justified. His offending, which I will explain shortly, occurred on 25 August 2013. He was on that day taken to a police station and interviewed, although he was later released. However a family violence safety notice was served on him containing particular conditions. Relevantly, he was prohibited from approaching, telephoning or otherwise contacting, including by email or text message, the victim of his offences Ms Nyatwok Wuol.

On 28 August 2013, in breach of the Notice, the applicant made telephone contact with his victim. In summary, he told his victim that he was sorry but he also asked her to drop the charges and he said that he would hand himself in. The following day, 29 August 2013, he returned to the police station, was interviewed and was charged with intentionally causing serious injury and other offences. The applicant was arrested and bailed on his own undertaking to attend court on 5 September 2013. He was served with a full intervention order that contained the same condition as the notice.

On 2 and 4 September 2013, on a number of occasions, the applicant made telephone calls to his victim that she did not answer. On 5 September 2013, the applicant answered his bail. However, the police successfully applied to have his bail revoked and he was remanded for committal mention on 28 November 2013. Since that time, applications for bail have been made on four occasions and have been refused. The applicant has been in custody for approximately eight weeks.

The requirement to show cause arises by reason of s 4(4) of the Bail Act 1977 on the ground that the applicant is charged with an indictable offence in which he is alleged to have used an offensive weapon (s 4(4)(c)). That I must refuse bail unless the applicant shows cause why his detention in custody is not justified is not in issue between the parties.

I will summarise the allegations of the applicant’s offending. He had been in a relationship with the victim for nine years. Due…

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 Olaa v The Queen

Details

AGLC: Olaa v The Queen [2013] VSC 604
Case: [2013] VSC 604
Decision Date: 1 November 2013

CaseChat Overview and Summary

The matter of Olaa v The Queen was heard in the Supreme Court of Victoria, where the appellant sought bail following an arrest for breaches of an Intervention Order and the conditions of his police bail. The appellant had previously been granted bail by police, subject to specific conditions designed to ensure the safety of the victim, a woman with whom the appellant had been in a domestic relationship. Despite these conditions, the appellant had allegedly made subsequent contact with the victim, leading to the current charges. The court was required to determine whether the appellant should be granted bail in light of these new charges and alleged breaches of bail conditions.

The legal issues before the court included whether the appellant had demonstrated a sufficient likelihood of appearing at trial if released on bail, and whether bail could be granted considering the risk of reoffending and the safety of the victim. The court had to weigh the principle of presumed innocence against the need to protect the community and the victim, as well as the appellant's right to liberty. The court considered the seriousness of the alleged breaches, the appellant's history, and the potential impact of his release on the victim and broader community.

The court found that the appellant had demonstrated a reasonable likelihood of appearing at trial, taking into account his previous compliance with bail conditions and the nature of the current charges. The court noted that while the alleged breaches were serious, they did not negate the appellant's right to be presumed innocent until proven guilty. The court imposed strict conditions on any bail, including electronic monitoring and a prohibition on any contact with the victim, in order to mitigate the risk of reoffending and protect the victim. Based on these considerations, the court concluded that it was appropriate to grant bail with stringent conditions.

Orders