Re AC - [2022] VSC 370

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0106

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by AC

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2022
DATE OF JUDGMENT:	23 May 2022
CASE MAY BE CITED AS:	Re AC
MEDIUM NEUTRAL CITATION:	[2022] VSC 370

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CRIMINAL LAW – Bail – Applicant charged with reckless conduct endangering life – Whether compelling reason made out – Whether applicant represented unacceptable risk – Applicant identifies as Aboriginal – Potential delay – Availability of residential rehabilitation – Compelling reason not made out – Unacceptable risk demonstrated – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 4AA, 4C, 4D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Daniel McGlone	Adrian Paull Criminal Lawyers
For the Respondent	Ms Stephanie Clancy	Office of Public Prosecutions

HIS HONOUR:

Introduction

By application filed 28 April 2022, AC (‘the applicant’) seeks a grant of bail in this Court in relation to the following five charges brought by Detective Sergeant Mathew Olston on 24 November 2021 (‘the Olston charges’):

(a)reckless conduct endangering life (two charges);[1]
(b)dangerous driving whilst being pursued by police;[2] and
(c)contravening a family violence intervention order[3] (‘FVIO’) (two charges).[4]

[1]Charge 3 and 9 of the Olston Charges.

[2]Charge 7 of the Olston Charges.

[3]Charge 8 and 12 of the Olston Charges.

[4]The applicant was originally charged with seven further offences, but on 20 April 2022 in Horsham Magistrates’ Court these charges were struck-out and withdrawn. See Affidavit in response, exhibit CMD-3, 318-332 for copies of the orders made in Horsham Magistrates’ Court on 20 April 2022.

The applicant has been in custody since his arrest on 24 November 2021. He was refused bail in the Horsham Magistrates’ Court on 20 April 2022 on the grounds that he failed to show a compelling reason justifying the grant of bail, and was found to be an unacceptable risk of committing an offence on bail or endangering the safety or welfare of any person.[5]
[5]See Affidavit in response, exhibit CMD-3, 324-326 and 331-332, for copies of the bail refusal extracts.

The applicant has indicated his intention to plead guilty to the offences charged, and the matter is next listed in Horsham Magistrates’ Court on 3 August 2022 for a contested summary jurisdiction application. The applicant seeks to have the charges heard before the Magistrates’ Court rather than having the plea and sentence heard in the County Court.

The alleged offending

At the time of the alleged offending the applicant had no fixed address and was reportedly abusing drugs and staying with associate drug-users.

On 7 April 2021 a two-year final no-contact family violence intervention order (‘FVIO’) was made in Horsham Magistrates’ Court listing the applicant as the respondent and his mother as the affected family member (‘AFM’). This order was served on the applicant on 6 August 2021.[6]
[6]See Affidavit in response, exhibit CMD-2, 217-219 for…

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 Re AC

Details

AGLC: Re AC [2022] VSC 370
Case: [2022] VSC 370
Decision Date: 23 May 2022

CaseChat Overview and Summary

Re AC concerned a bail application by the applicant, charged with reckless conduct endangering life. The applicant identified as Aboriginal and was seeking bail under the Bail Act 1977. The primary legal issues before the court involved whether a compelling reason existed for granting bail, considering the nature of the offence and the applicant's background. Additionally, the court had to assess whether the applicant represented an unacceptable risk to the community if released on bail.

The court examined the principles outlined in the Bail Act 1977, particularly sections 1B, 3AAA, 3A, 4AA, 4C, and 4D. The applicant argued that their Aboriginal identity and the potential for delays in the case proceedings constituted compelling reasons for bail. However, the court found that these factors did not establish a compelling reason. Furthermore, the court determined that the risk to the community was unacceptable, given the serious nature of the charge and the applicant's criminal history. Consequently, the application for bail was refused.

Ultimately, the court balanced the principles of the Bail Act 1977 with the need to protect the community, leading to the refusal of bail. The court's decision highlighted the importance of assessing each application on its merits while adhering to statutory guidelines.

Orders