Re AM

Case [2020] VSC 569 4 June 2020

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0054

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by AM

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF JUDGMENT:	4 June 2020
DATE OF REASONS	9 September 2020
CASE MAY BE CITED AS:	Re AM
MEDIUM NEUTRAL CITATION:	[2020] VSC 569

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CRIMINAL LAW – Bail – 18 year old applicant - Charge of murder (common law and statutory) arising from planned robbery with gang connection – Applicant on bail and subject to probation at time for earlier violent offending – Poor bail history – Non-compliance with conditions of probation order – Unfavourable report by Youth Justice but bail support still on offer – Numerous violent incidents since applicant in custody - Questionable strength of prosecution case – Family support available – Delay – Case fast-tracked into Supreme Court but 18 month delay still likely – Onerous conditions in custody – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3B, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Marsh	Victoria Legal Aid
For the Respondent	Mr R Gibson QC	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applied for bail on charges he faces of common law murder, statutory murder, armed robbery, intentionally causing serious injury, and intentionally causing serious injury in circumstances of gross violence.

It was common ground between the parties that the Court was required to refuse bail unless satisfied that exceptional circumstances existed that would justify the grant of bail. This was because the applicant was accused of committing a Schedule 1 offence within the meaning of the Bail Act 1977, namely, murder. In addition, the exceptional circumstances test would have applied because the applicant was accused of Schedule 2 offences while on bail for a Schedule 2 offence.

Having heard the application, I indicated that I was not satisfied of the existence of exceptional circumstances. In addition, I indicated that even had I been, I would have been satisfied that there was an unacceptable risk that if released on bail, the applicant would endanger the safety or welfare of the public, commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice. I therefore refused the application for bail.

I indicated at the time that I would publish detailed reasons for my decision at a later time. These are those reasons.

Procedural history

The applicant is charged with offences arising out of the stabbing death of Maaka Hakiwai and serious injury caused to his brother, Nathaniel Hakiwai, on 28 September 2019. He was 17 years old at the time of the alleged offences and 18 years old by the time of the application. He was arrested and remanded in custody in relation to the first…

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 AM

Details

AGLC: Re AM [2020] VSC 569
Case: [2020] VSC 569
Decision Date: 4 June 2020

CaseChat Overview and Summary

The case of Re AM involved an 18-year-old applicant facing charges of murder under both common law and statute, which arose from a planned robbery with gang connections. AM was on bail and subject to probation at the time of the alleged offence, having a history of earlier violent offending. The applicant had a poor bail history and had not complied with the conditions of the probation order. The court considered an unfavourable report from Youth Justice, but bail support was still available. The applicant had numerous violent incidents while in custody, and the strength of the prosecution case was questionable. However, there was family support available, and the case was fast-tracked into the Supreme Court, although an 18-month delay was still likely. The court considered the onerous conditions in custody and whether exceptional circumstances were established. Ultimately, the court found that there was an unacceptable risk, and bail was refused.

The central legal issues the court had to determine were whether the applicant met the criteria for bail under the Bail Act 1977 and if it was in the interests of justice to grant bail. This involved weighing the applicant's history of violent offending, non-compliance with probation conditions, and the seriousness of the charges against them. The court also needed to consider the strength of the prosecution's case, the availability of family support, and the potential delay in the trial due to the case being fast-tracked into the Supreme Court. Furthermore, the court had to assess the conditions in custody and whether exceptional circumstances existed that would warrant granting bail.

The court's reasoning focused on the applicant's poor bail history, non-compliance with probation conditions, and the numerous violent incidents while in custody. The court found that the strength of the prosecution case was questionable but acknowledged that the applicant faced serious charges related to a planned robbery with gang connections. The court also considered the availability of family support and the likely delay in the trial. Despite the fast-tracking of the case into the Supreme Court, an 18-month delay was still expected. The court found that the conditions in custody were onerous but did not establish exceptional circumstances. Ultimately, the court concluded that there was an unacceptable risk of the applicant reoffending if granted bail, and therefore, bail was refused under the Bail Act 1977.

The final orders of the court were to refuse bail to the applicant. The court determined that the applicant did not meet the criteria for bail and that it was not in the interests of justice to grant bail. The court found that the applicant's history of violent offending, non-compliance with probation conditions, and the seriousness of the charges against them outweighed the potential benefits of granting bail. The court also considered the questionable strength of the prosecution case, the availability of family support, and the likely delay in the trial. Despite the onerous conditions in custody, the court did not find exceptional circumstances that would warrant granting bail. Therefore, the court refused bail under the Bail Act 1977.

Orders