Re AH - [2021] VSC 426

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0169

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by ADRIAN H	Applicant

---

JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2021
DATE OF RULING:	16 July 2021
CASE MAY BE CITED AS:	Re AH
MEDIUM NEUTRAL CITATION:	[2021] VSC 426

---

CRIMINAL LAW – Bail – Applicant charged with recklessly causing injury and other offences – Family violence offences – Applicant prima facie entitled to bail unless respondent establishes unacceptable risk – Whether applicant poses an unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4AA, 4E, 5AAAA.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Mitchell	Michael J Gleeson & Associates
For the Respondent	Mr J Jassar	Victoria Police

HER HONOUR:

Introduction

Adrian H (‘the applicant’) is 29 years old, and this is his first time in custody. He has been on remand since 23 June 2021 for the following charges that relate to offending that occurred on 22 June 2021:

(a)Where the informant is First Constable Benjamin Price (‘Price Charges’)[1](this offending is alleged to have occurred at around 4pm):
[1]First Constable Price confirmed at the oral hearing that the lesser charges are laid in the alternative to the most serious charge.

(i) Recklessly cause injury on 22 June 2021 contrary to s 18 of the Crimes Act 1958 (Vic)(‘Crimes Act’);

(ii) Two charges of Unlawful assault on 22 June 2021 contrary to s 23 of the Summary Offences Act 1966 (Vic)(‘Summary Offences Act’);

(iii) Common law assault on 22 June 2021 contrary to common law; and

(iv) Aggravated assault on 22 June 2021 contrary to the Summary Offences Act.

(b)Where the informant is First Constable Healy (‘Healy charge’)(this offending is alleged to have occurred at approximately 9pm):

(v) Contravention of a family violence safety notice (‘FVSN’) on 22 June 2021 contrary to s 37(2) of the Family Violence Protection Act 2008 (Vic).

The applicant seeks bail for both matters.

On 23 June 2021, the applicant was refused bail on both matters in the Melbourne Magistrates’ Court, on the basis that he posed an unacceptable risk of committing an offence while on bail and endangering the safety or welfare of any person.[2]
[2]Certified Extract of orders of the Melbourne Magistrates Court on 23 June 2021, exhibited at HL-3 of the Affidavit in Support of Bail of Helen Le affirmed 5 July 2021 (‘Affidavit in Support’).

The Price and Healy Charges are next listed on 30 July 2021 for Mention in the Broadmeadows Magistrates’ Court.

Circumstances of offending and arrest

The complainant in the Price and Healy charges is Adrian H’s half-sister, SA. They shared the same mother, Michelle H.

Michelle H died on 18 May 2021. At the time of her death, and for the two months immediately prior, Adrian H had been attending on a daily basis and caring for her in her…

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 AH

Details

AGLC: Re AH [2021] VSC 426
Case: [2021] VSC 426
Decision Date: 16 July 2021

CaseChat Overview and Summary

The applicant, AH, applied for bail in the Magistrates’ Court of Victoria, charged with recklessly causing injury, endangering life, and other offences related to family violence. The prosecution opposed bail, arguing that the applicant posed an unacceptable risk to the community and the complainant. The court was required to determine whether the applicant was prima facie entitled to bail and, if so, whether there were exceptional circumstances that made the applicant’s release unacceptable.

The court found that the applicant was prima facie entitled to bail, as the applicant was charged with offences that were bailable by operation of law. The court then considered the risk factors outlined in the Bail Act 1977, including the seriousness of the alleged offending, the likelihood of reoffending, and the risk of revictimising the complainant. The court also considered the applicant’s personal circumstances, including their employment history, family ties, and previous criminal history. The court concluded that the applicant did not pose an unacceptable risk to the community or the complainant, and that the applicant’s release on bail would not undermine the administration of justice.

Accordingly, the court granted the applicant bail, subject to a number of conditions, including that the applicant reside at a specified address, not approach or contact the complainant or any witnesses in the matter, and attend a drug and alcohol rehabilitation program. The applicant was also required to surrender their passport and report to police on a regular basis.

The court made clear that the applicant’s release on bail was not an indication of the outcome of the case, and that the applicant remained presumed innocent until proven guilty. The court also emphasised the importance of protecting the complainant and the community, and the need to balance the rights of the applicant with the need to prevent reoffending and revictimisation.

Orders