R v Viavattene - [2016] NSWSC 299

Supreme Court

New South Wales

Medium Neutral Citation: R v Viavattene [2016] NSWSC 299
Hearing dates: 18 March 2016
Date of orders: 18 March 2016
Decision date: 18 March 2016
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Matter adjourned to 6 April 2016 for bail hearing.

Catchwords: PROCEDURE – notice of motion – applicant in custody – application for further expedited bail hearing - no basis for further expedition – other orders sought not made
Legislation Cited: Bail Act 2013 (NSW)
Crimes Act 1900 (NSW)
Category: Procedural and other rulings
Parties: Peter Viavattene (Applicant)
Crown (Respondent)
Representation: Solicitors:
Director of Public Prosecutions (Respondent)

File Number(s): 2016/59535
Publication restriction: None

EX TEMPORE Judgment

Mr Viavattene is in custody bail refused, having been charged under s 94 of the Crimes Act1900 (NSW) with an offence of robbery, which carries a maximum penalty of 14 years imprisonment. He has made an application to this Court for release on bail, which was listed for hearing on 25 May. On 16 March, by motion filed that day in court on his behalf by his wife, he sought an order for expedition of the hearing of his bail application, as well as other orders, including an order for his immediate release on bail under s 49 of the Bail Act2013 (NSW).
The circumstances of the alleged offending are that Mr Viavattene is alleged to have taken a mobile phone from an identified person on 12 February 2016. He has been in custody since arrest on 23 February. His application for bail was that day refused by the Local Court at Murwillumbah.
Having considered what appeared on the motion and supporting affidavit sworn by Mrs Viavattene and documents provided, including submissions which she advanced on Mr Viavattene’s behalf, I granted expedition of the bail application to the earliest available date in the list, 6 April. I declined to hear the other orders sought in the motion ex parte.
Mr Viavattene then himself appeared at the adjourned hearing on 18 March, when he filed in court a further motion, supported by an affidavit he had sworn by which he pressed an order for further expedition and his immediate release. Those orders were opposed.
They were pressed by reference to various provisions of the Bail Act, which did not provide a basis for the orders Mr Viavattene sought. Otherwise Mr Viavattene relied on matters advanced in the affidavits as to the circumstances of his arrest, charge, the proceedings in the Local Court when he was bail refused and matters going to ongoing disputes which he has had with his neighbours and views which he holds as to the conduct of the police and the unfairness of the treatment he and members of his family have received in the Local Court at Murwillumbah.
Contrary to his submissions, Mr Viavattene has no right to release on bail under the Bail Act. Section 21 “Special rule for offences for which there is a right to release”, does not apply…

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 Viavattene

Details

AGLC: R v Viavattene [2016] NSWSC 299
Case: [2016] NSWSC 299
Decision Date: 18 March 2016

CaseChat Overview and Summary

The case of R v Viavattene involved the applicant, who was in custody, seeking an expedited bail hearing. The matter was before the court, which had to determine the legality of the application and decide whether to grant further expedited bail or other related orders. The applicant argued for a swift hearing, claiming urgency, but the prosecution opposed this on the basis that no new grounds for expedited consideration had been presented.

The legal issues before the court were whether the applicant's application for an expedited bail hearing was justified and whether the court should grant the other orders sought by the applicant. The court needed to assess the applicant's claims of urgency and determine if there were valid reasons to deviate from the usual bail procedures. Additionally, the court had to consider the merits of the other orders requested by the applicant and decide if they should be granted in the current circumstances.

The court found that there was no new basis presented for expediting the bail hearing, and therefore the application for further expedition was not justified. The court also concluded that the other orders sought by the applicant were not warranted under the current circumstances. The reasoning was that the applicant had not provided sufficient grounds to warrant a deviation from the standard bail process. Consequently, the court dismissed the application for further expedited bail and did not make the other orders sought by the applicant.

The court's final orders were to dismiss the application for an expedited bail hearing and to not grant the other orders sought by the applicant. This decision underscored the importance of demonstrating new and compelling reasons for expediting legal processes, particularly in matters involving bail.

Orders