Re Am (No 2) - [2021] VSC 284

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:	26 April 2021
DATE OF JUDGMENT:	26 April 2021
DATE OF REASONS	20 May 2021
CASE MAY BE CITED AS:	Re AM (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 284

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CRIMINAL LAW – Bail – 18 year old applicant - Charge of robbery arising from planned robbery with gang connection – Applicant has already pleaded guilty to offence – Plea hearing to take place on 21 June 2021 - Applicant previously faced charges including murder – Previous application for bail refused as exceptional circumstances not made out – Compelling reason test now applicable – Significant time already spent on remand – Family support and stable accommodation – Youth Justice support – Bail not opposed by prosecution – Compelling reason established – No unacceptable risk – Bail granted on stringent conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4C, 4D, 4E.

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

HIS HONOUR:

Introduction

The applicant applied for bail on a charge he faces of robbery, arising from an incident which took place in Kings Park on 28 September 2019.

It was common ground between the parties that the Court was required to refuse bail unless satisfied that a compelling reason existed that would justify the grant of bail. This was because the applicant was accused of committing an indictable offence while on bail for another indictable offence.[1]
[1]Bail Act 1977, Schedule 2, item 1(a).

Having heard the application, I indicated that I was satisfied of the existence of a compelling reason in justification of the grant of bail, and was not satisfied that there was an unacceptable risk of any of the eventualities contemplated by s 4E(1)(a) of the Bail Act 1977 (‘the Act’). I admitted the applicant to bail on stringent conditions.

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 was originally charged with murder and other offences arising out of the stabbing of Maaka Hakiwai (‘Maaka’) and his brother, Nathaniel Hakiwai (‘Nathaniel’), on 28 September 2019. The applicant was 17 years old at the time of the events and 18 years old by the time of this application. He had allegedly offended in company with Chol Kur (‘Kur’) and Joshua Horton (‘Horton’). The applicant was arrested and remanded in custody on 13 October 2019 and has been in custody ever since.

On 12 February 2020 at a committal mention in the Children’s Court, leave was granted to the applicant to cross-examine seven witnesses at a committal hearing, originally…

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 (No 2)

Details

AGLC: Re Am (No 2) [2021] VSC 284
Case: [2021] VSC 284
Decision Date: 26 April 2021

CaseChat Overview and Summary

The applicant, an 18-year-old, sought bail in relation to a charge of robbery arising from a planned offence with connections to a gang. The matter was heard by the Supreme Court of Victoria. The applicant had already pleaded guilty to the offence, with a plea hearing scheduled for 21 June 2021. The applicant previously faced charges that included murder, and a prior application for bail was refused on the basis that exceptional circumstances had not been made out. The current application required the court to determine whether compelling reasons existed for granting bail, given the applicant's prior criminal history and the nature of the current charge.

The court had to consider the compelling reason test under the Bail Act 1977, which required a balance between the significant time the applicant had already spent on remand and the potential risk of reoffending. The applicant's family support, stable accommodation, and the provision of youth justice support were also factors that needed to be weighed. The prosecution did not oppose bail, which facilitated the court's assessment. The court found that compelling reasons did exist for granting bail, as there was no unacceptable risk, and stringent conditions were imposed to ensure the applicant's appearance at court.

In light of the compelling reasons identified, the court granted bail to the applicant on stringent conditions. The decision highlighted the importance of balancing the applicant's right to liberty with the need to ensure public safety. The final orders included detailed conditions for the applicant's release, reflecting the seriousness of the charges and the need for strict compliance to mitigate any risk of reoffending. The court's decision underscored the application of the compelling reason test and the significance of factors such as family support and the applicant's history of cooperation with authorities.

Orders