R v Heenan - [2005] VSC 49

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1414 of 2005

IN THE MATTER of an Application for Bail by
PETER ALAN HEENAN

---

JUDGE:	Whelan J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2005
DATE OF JUDGMENT:	3 March 2005
CASE MAY BE CITED AS:	In the Matter of Heenan
MEDIUM NEUTRAL CITATION:	[2005] VSC 49

---

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Albert	Solicitor to the Office of Public Prosecutions
For the Applicant	Mr C Dane, QC	Theo Magazis & Associates

HIS HONOUR:

This is an application for bail by Peter Alan Heenan. Mr Heenan is charged with the following offences:

- attempted murder
- intentionally causing serious injury
- assault
- rape
- making threat to kill – 2 counts
- false imprisonment
- aggravated burglary

The offences are alleged to have occurred in the early morning of 1 January 2005. The principal victim of the alleged offences was the applicant’s estranged wife, Helen Heenan.

The principles applicable on this application are as follows:

(1)The Court starts with the presumption of innocence and, in relation to bail, also starts with a general right to bail as provided for in s 4(1) of the Bail Act 1977.
(2)In some circumstances the right to bail is abrogated. Section 4(4) of the Act provides that where a person is charged with certain types of offences “ … the Court shall refuse bail unless the accused person shows cause why his detention in custody is not justified”. One circumstance where this provision applies is where the accused is charged with aggravated burglary: s 4(4)(c).
(3)If the accused does show cause why his detention is not justified the Court shall nevertheless refuse bail if the Court is satisfied that there is an unacceptable risk that if released he would fail to surrender himself, would commit an offence, would endanger the public, or would interfere with a witness: s 4(2)(d)(i).
(4)In assessing the issue of unacceptable risk the Court is to have regard to all relevant matters, and without limiting that enquiry to such of the following as appear relevant: the nature and seriousness of the offence; the character, antecedents and home environment of the accused; the history of prior grants of bail; the strength of the evidence against the accused; and the attitude of the victim: s 4(3).
(5)Where s 4(4)(c) applies the initial burden is on the accused to show cause why his detention is not justified. If he does show cause, the burden of establishing unacceptable risk is upon the Crown. The factors relevant to the two enquiries will overlap in many cases. The factors relevant to unacceptable risk also have to be weighed when considering whether the applicant for bail has shown cause.[1]

[1]DPP v Harika [2001] VSC 237 at [46].

The charges against Mr Heenan arise out of events which occurred after Mr Heenan apparently decided to pay a visit to the home of his estranged wife at…

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 R v Heenan

Details

AGLC: R v Heenan [2005] VSC 49
Case: [2005] VSC 49
Decision Date: 3 March 2005

CaseChat Overview and Summary

Peter Alan Heenan applied for bail in relation to a series of serious charges, including attempted murder, intentionally causing serious injury, assault, rape, making threats to kill, false imprisonment, and aggravated burglary. The alleged victim was his estranged wife, Helen Heenan, who suffered extensive injuries during the alleged attack. The primary legal issues the court needed to decide were whether Heenan had shown cause why his detention was not justified and whether there was an unacceptable risk that he would fail to surrender, commit further offences, or interfere with witnesses if released on bail.

The court considered Heenan's history of non-compliance with legal requirements, including a pattern of driving offences and failures to appear in court. It was noted that Heenan had a poor history of traffic offences but had no prior violent convictions apart from an incident involving his estranged wife. The court also took into account the severity of the current charges and the fear expressed by the victim. The Crown argued that there was a significant risk of reoffending and witness interference, while Heenan's counsel highlighted his stable home environment, steady employment, and the surety provided by his son.

The court found that while Heenan had shown some positive aspects, such as stable accommodation, his extensive history of non-compliance with legal restrictions suggested a disregard for legal restraints. Given the seriousness of the charges and the victim's fear, the court concluded that there was an unacceptable risk that Heenan would commit further offences and interfere with witnesses. Additionally, Heenan had failed to show cause why his detention was not justified, particularly in light of the aggravated burglary charge. Consequently, the application for bail was dismissed.

The court ordered that the application be reconsidered after the committal, allowing for a more comprehensive assessment of the case and the relationship with the victim. The court also suggested that attention could be directed towards anger management and addressing Heenan's problematic behaviour, particularly his history of alcohol-related driving offences.

Orders