Re AJ - [2021] VSC 291

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0086

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by AJ	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2021
DATE OF JUDGMENT:	21 May 2021
CASE MAY BE CITED AS:	Re AJ
MEDIUM NEUTRAL CITATION:	[2021] VSC 291

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CRIMINAL LAW – Bail – Applicant charged with possess a firearm in breach of firearm prohibition order and related charges – Lengthy criminal history – Significant drug history and mental health concerns –Proposed bail to residential rehabilitation facility along with substantial surety-significant delay until trial – Exceptional circumstances established – Unacceptable risk not established – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Dunn QC with Mr Radzaj	Theo Magazis & Associates
For the Respondent	Mr D Porceddu	Office of Public Prosecutions

HER HONOUR:

Introduction

The applicant was arrested on 11 November 2020 by Informant Zahra. He has remained in custody since, and as at the date of this application, he will have spent 189 days in custody.

On 11 November 2020, shortly after 9:00am, a search warrant was executed by police[1] on the applicant’s home address where he lived with his mother and brother (‘the Westmeadows address’). At approximately 9:45am, in the presence of the applicant, police found some car keys on the floor next to his bed. The car keys were used to open a BMW I8 coupe (BCG-439) that was parked in the driveway immediately outside the front door of the address. On the front passenger seat of the car, police located a Louis Vuitton satchel. In that satchel, was a black zip up case, containing a silver .32 calibre Colt revolver (‘the revolver’), loaded with six ammunition rounds (from that revolver). The satchel, the case, the revolver and the ammunition were all seized. Cannabis and diverse steroid related substances were also seized during the search of the applicant’s garage. Police also searched another BMW vehicle parked in the driveway (white, BIQ-286), and located a mobile phone. Other evidentiary items seized by police at the premises included certain mobile phones and a hard drive relating to a CCTV camera.
[1]Pursuant to s 146 of the Firearms Act 1996 (‘Firearms Act’).

The applicant was arrested and charged in relation to the firearm and other substances seized by police. At the time of his arrest he was prohibited from possessing firearms.[2] He had also been served with a firearms prohibition notice on 4 April 2019. He did not have a licence or permit to possess the ammunition within the revolver.
[2]The applicant was a ‘prohibited person’ within the meaning of the Firearms Act on any of the following grounds: (1) as a result of him being a Respondent to a final Family Violence Intervention Order made on 14 December 2018; (2) was a person not more than…

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 AJ

Details

AGLC: Re AJ [2021] VSC 291
Case: [2021] VSC 291
Decision Date: 21 May 2021

CaseChat Overview and Summary

In the case of Re AJ, the applicant, who was already on bail for other serious charges, faced additional accusations of possessing a firearm in violation of a firearm prohibition order and related offences. The matter was heard in the Court of Appeal, which was asked to determine whether the trial judge erred in denying bail to the applicant. The applicant proposed to be remanded to a residential rehabilitation facility under strict conditions and with a substantial surety, given the significant delay until the trial. The primary legal issues before the court were whether the trial judge had correctly assessed the risk posed by the applicant and whether exceptional circumstances justified granting bail despite the applicant's criminal history, drug use, and mental health issues.

The court analysed the trial judge's approach to the risk assessment and the evidence presented. It concluded that the trial judge had not properly considered the exceptional circumstances, which included the substantial delay until the trial and the proposed bail conditions. The court found that the risk posed by the applicant was not unacceptable, considering the stringent bail conditions and the surety provided. The court also highlighted the applicant's willingness to participate in the rehabilitation program as a significant factor in favour of bail. Consequently, the court determined that the trial judge had erred in denying bail and set aside the decision.

Following the court's reasoning, it was determined that the exceptional circumstances, coupled with the stringent bail conditions and surety, justified granting bail. The court held that the applicant's criminal history, while concerning, did not preclude the possibility of acceptable bail conditions. The court emphasised the importance of balancing the risk to the community with the applicant's right to liberty. Given these considerations, the court granted bail and ordered the applicant to be remanded to the residential rehabilitation facility under the proposed conditions. The decision underscored the need for a thorough and balanced assessment of all relevant factors in bail applications, particularly in cases involving significant delays and exceptional circumstances.

Orders