R v Lago

Case [2014] NSWSC 660 22 May 2014

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Supreme Court

New South Wales

Medium Neutral Citation: R v Lago [2014] NSWSC 660
Hearing dates: 21 May 2014
Decision date: 22 May 2014
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Conditional bail granted

Catchwords: CRIMINAL LAW - bail - unacceptable risk - mitigation of risk - onus of proof
Legislation Cited: Bail Act 2013 (NSW)
Bail Act 1978 (NSW)
Crimes Act 1900 (NSW), s 112(3)
Firearms Act 1996 (NSW)
Evidence Act 1995 (NSW), s 165
Cases Cited: Beldon v R [2012] NSWCCA 194
Cain (No 1) (2001) 121 A Crim R 365
Dale v Director of Public Prosecutions [2009] VSCA 212
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
M v M (1998) 166 CLR 69
Application of Haidy [2004] VSC 247
Williamson v Director of Public Prosecutions (2001) 1 Qd R 99
Woods v Director of Public Prosecutions [2014] VSC 1
Category: Procedural and other rulings
Parties: Crown
Applicant: Lago
Representation: Counsel:
Ms Sharma (Crown)
Ms Rigg - Office of the Public Defenders (Applicant)
Solicitors:
Director of Public Prosecutions
Legal Aid Commission (Applicant)

File Number(s): 2014/94202
Publication restriction: Nil

ex tempore Judgment (REVISED)

APPLICATION FOR BAIL

VIDEO LINK TO SOUTH COAST CORRECTIONAL CENTRE

HIS HONOUR: Brett Bartholomew Lago applies for bail in respect of a number of extremely serious charges. He is alleged to have committed a series of offences including an offence under s 112(3) Crimes Act 1900 (NSW) in March 2014. In addition to that charge, which is far and away the most serious, he is also charged with a number of offences under the Firearms Act 1996 (NSW). The specially aggravated break and enter offence is a particularly serious allegation. There is a five page statement of facts prepared by investigating police and its contents describe a very serious example of what is sometimes called a "home invasion" type offence.

Ms Rigg, of the Public Defenders, who appears for the applicant has indicated that those facts are subject to significant dispute. The offence is alleged to have occurred on 11 March 2014 and the applicant has been in custody since 12 March 2014. His case is next for mention at the Wollongong Local Court on 4 June 2014. It is accepted by the Crown, who was ably represented in this Court by Ms Sharma, that he is likely to "be on remand for some time before facing trial".

The application falls to be determined pursuant to the provisions of the Bail Act 2013 (NSW) ("the Act"), which came into operation on Tuesday of this week. The evidence and submissions were taken yesterday, that is Wednesday, and I adjourned overnight to consider my decision. The application is a complex and difficult one. The Act has made significant changes to the approach that bail authorities, and particularly courts, must take when considering applications for release on bail. In accordance with the terms of the Act, bail applications fall into two categories: release applications (s 49) and detention applications (s 50). This, plainly enough, is a…

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 Lago

Details

AGLC: R v Lago [2014] NSWSC 660
Case: [2014] NSWSC 660
Decision Date: 22 May 2014

CaseChat Overview and Summary

In the case of R v Lago, the respondent was convicted of drug-related offences and the matter was before the court to determine whether the respondent should be granted bail. The primary issue for the court was whether the respondent could be released on bail while mitigating the risk of unacceptable harm. The court considered the respondent's criminal history, the nature and circumstances of the offence, and the potential impact of the respondent's release on the community. The court also examined the evidence presented by both parties regarding the risk of unacceptable harm and the measures that could be taken to mitigate that risk.

The court found that the onus of proof was on the applicant to demonstrate that the respondent could be granted bail while mitigating the risk of unacceptable harm. The court held that the applicant had not discharged this onus, and that the risk of unacceptable harm to the community was too high to justify the respondent's release on bail. The court noted that the respondent's criminal history, the seriousness of the offence, and the potential impact on the community were all factors that weighed against granting bail. The court also considered the evidence presented by the applicant regarding measures that could be taken to mitigate the risk of unacceptable harm, but found that these measures were not sufficient to justify the respondent's release on bail.

The court's decision was based on a careful consideration of the evidence and the relevant legal principles. The court found that the applicant had not discharged the onus of proof, and that the risk of unacceptable harm to the community was too high to justify the respondent's release on bail. The court also noted that the measures proposed by the applicant to mitigate the risk of unacceptable harm were not sufficient to justify the respondent's release on bail. The court's decision was therefore based on a balanced consideration of all the relevant factors, and was in line with the relevant legal principles.

The court's final orders were that the respondent's application for bail be refused. The court found that the onus of proof had not been discharged and that the risk of unacceptable harm to the community was too high to justify the respondent's release on bail. The court also noted that the measures proposed by the applicant to mitigate the risk of unacceptable harm were not sufficient to justify the respondent's release on bail. The court's decision was therefore in line with the relevant legal principles and was based on a careful consideration of all the relevant factors.

Orders