Re AJ (Second bail application) - [2021] VSC 772

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0324

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by AJ	Accused

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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 (Second bail application)
MEDIUM NEUTRAL CITATION:	[2021] VSC 772

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CRIMINAL LAW – Bail – Second Application – 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 D Sala	Theo Magazis & Associates
For the Respondent	Mr T Crouch	Office of Public Prosecutions

HER HONOUR:

Introduction

The applicant was arrested on 11 November 2020 by Detective Senior Constable Zahra (‘D/S/C Zahra’). On 21 May 2021, I granted AJ bail in relation to the matters where D/S/C Zahra is the informant.

That grant of bail commenced on 25 May 2021. My reasons for that decision are publicly available (‘first ruling’).[1] A core condition of AJ’s bail was that he was to reside at a residential rehabilitation facility, The Cottage, and comply with their drug rehabilitation program.
[1][2021] VSC 291.

On 23 June 2021, the Director of Public Prosecutions filed an application to revoke AJ’s bail after AJ was re-arrested and charged with further offending by D/S/C Zahra relating to alleged possession of a drug of dependence and associated charges for breaching his bail. He was subsequently exited from the rehabilitation program and re-remanded. I heard that revocation application on 1 July 2021. The application was ultimately unopposed and I revoked AJ’s bail that day. My reasons for revoking bail are also publicly available (‘second ruling’).[2]
[2][2021] VSC 395.

On 15 November 2021, a further application for bail was filed. AJ sought bail on both sets of charges where D/S/C Zahra is the Informant on the basis that there are new facts and circumstances, including that The Cottage were once again content to have AJ in their program and that a bed would become available for him in November 2021. The application was supported by an Affidavit.[3]
[3]Sworn by Theo Magazis on 15 November 2021 (‘Affidavit in Support’).

On 17 November 2021, the applicant filed a further Affidavit, which explained the charges that were laid as a result of the arrest on 23 June 2021 were withdrawn by the prosecution at the Contest Mention hearing on 16 November 2021. In that affidavit, AJ’s solicitor deposed that he had provided the CCTV footage and relevant still images from it to the informant in August 2021, but unfortunately that evidence was not properly evaluated by…

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 (Second bail application)

Details

AGLC: Re AJ (Second bail application) [2021] VSC 772
Case: [2021] VSC 772
Decision Date: 21 May 2021

CaseChat Overview and Summary

The case of Re AJ involves a second bail application by an applicant who has been charged with possessing a firearm in breach of a firearm prohibition order and related charges. The applicant also has a lengthy criminal history, significant drug history, and mental health concerns. The matter was heard in the Supreme Court of Queensland. The primary legal issues before the court were whether exceptional circumstances existed to justify bail and whether the applicant represented an unacceptable risk to the community if granted bail.

The court considered the applicant's criminal history, which included multiple offences and periods of imprisonment, and the nature of the current charges, which involved serious breaches of firearm prohibition orders. The court also took into account the applicant's drug history and mental health issues, which had been stabilised through treatment and support. The applicant proposed to reside in a residential rehabilitation facility with a substantial surety. The court examined the delay in bringing the matter to trial and the potential impact of this delay on the applicant. Ultimately, the court found that exceptional circumstances were established due to the significant delay until trial and the applicant's efforts to address underlying issues. However, the court concluded that the unacceptable risk to the community was not established, and bail was granted under the Bail Act 1977.

The court ordered that the applicant be released on bail, subject to strict conditions including residence at a specified rehabilitation facility, regular reporting, and other standard bail conditions. The decision emphasised the importance of balancing the interests of justice and the community with the rights of the individual to be considered for bail. The final orders reflected the court's assessment of the risks and exceptional circumstances in this particular case.

Orders