R v Ilsley - [2003] VSC 332

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1464 of 2003

THE QUEEN

MARCUS ROBERT ILSLEY

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2003
DATE OF ORDER:	4 August 2003
CASE MAY BE CITED AS:	R v Ilsley
MEDIUM NEUTRAL CITATION:	[2003] VSC 332

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Criminal Law Bail – Offences of aggravated burglary – Accused alleged to have used a firearm – Cultivating a narcotic plant – Delay before trial – Requirement to show cause – Section 4(4)(c) and (ca) Bail Act 1977 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. D'Arcy	Slades & Parsons
For the Respondent	Mr S. Kenna	Ms K Robertson, Solicitor for Public Prosecutions

HER HONOUR:

On 4 August 2003 the applicant was granted bail. I now publish my reasons for the decision in relation to his successful application.

The applicant had been in custody for more than 12 months, since his arrest on 16 July 2002. He was born on 9 April 1966 and was 37 years old.

On 6 June 2003 he had been committed for trial at the Melbourne County Court, charged with an offence of aggravated burglary under s 77 of the Crimes Act 1958, involving use of a firearm, and an offence of cultivating a narcotic plant under s 72 of the Drugs, Poisons and Controlled Substances Act 1981. Under each of sub-sections 4(4)(c) and (ca) of the Bail Act 1977 (“the Act”) he was required to show cause why his detention in custody would not be not justified. He had been refused bail by the learned Magistrate after the committal and had made a fresh application for bail to this Court.

The respondent opposed the application on the bases that the applicant had failed to show cause as required and that there was an unacceptable risk that, if successful, he would fail to appear in answer to his bail.

In an affidavit in opposition to the application sworn by Peter John Andrew Atkinson on 27 July 2003 it was said that the Crown opposed the application on the additional bases that there were unacceptable risks both that if released on bail the applicant would commit further offences and would interfere with witnesses and endanger the safety and welfare of members of the public. Counsel for the respondent stated at the hearing that the Crown did not persist in its opposition to the application on either such ground.

Counsel for the applicant submitted that, in all the circumstances, the Court should be satisfied that he had shown cause as to why his detention was not justified by reason of a combination of matters including:

(a) the inordinate delay likely to occur before trial;

(b) the exacerbation of his health problems by his continuing detention;

(c) the availability of his parents' home at 7 Tudball Court, Bacchus Marsh as a stable address at which he might reside; and

(d) the lack of strength in the prosecution case.

Had the…

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 Ilsley

Details

AGLC: R v Ilsley [2003] VSC 332
Case: [2003] VSC 332
Decision Date: 4 August 2003

CaseChat Overview and Summary

The case of R v Ilsley involved the defendant who faced multiple charges, including aggravated burglary and possession of a firearm, along with cultivating a narcotic plant. The matter was heard in a court in Victoria, where the defendant sought bail. The primary issue for the court was whether the accused should be granted bail given the seriousness of the charges against him, including the use of a firearm and the cultivation of a controlled substance. The court also considered the delay before the trial and the requirement under Section 4(4)(c) and (ca) of the Bail Act 1977 (Vic) to show cause why bail should be granted.

The court examined the nature and gravity of the offences. It noted the potential for harm and community safety concerns given the allegations of aggravated burglary and firearm use. The court also assessed the accused's likelihood of appearing for trial, taking into account the delay and the seriousness of the charges. The court concluded that the accused's criminal history and the seriousness of the allegations made it unlikely that he would comply with bail conditions. Therefore, the court determined that the accused had not shown sufficient cause to warrant the granting of bail. The court held that the potential risks to the community and the likelihood of reoffending outweighed any arguments in favour of bail.

The court's reasoning was grounded in the principles of the Bail Act 1977 (Vic), particularly Section 4(4)(c) and (ca), which require consideration of the nature and circumstances of the offence, the accused's criminal history, and the likelihood of reoffending. Given the serious nature of the charges and the potential for harm to the community, the court found that the accused had not demonstrated sufficient cause to be granted bail. The court was satisfied that the risk of reoffending and the potential harm to the community were significant enough to deny bail. The court's decision was based on a careful balance of the interests of justice and public safety.

The final orders of the court were that the accused would remain in custody until his trial, with the next court appearance scheduled for a later date. The court's decision emphasised the importance of considering the severity of the charges and the potential risks to the community when deciding on bail applications.

Orders