Re Application for Bail by LM - [2021] VSC 623

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0237

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by LEIGH M	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2021
DATE OF JUDGMENT:	23 September 2021
CASE MAY BE CITED AS:	Re Application for Bail by LM
MEDIUM NEUTRAL CITATION:	[2021] VSC 623

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CRIMINAL LAW – Bail – Applicant charged with using carriage service to menace, threats to cause serious injury and other charges – Applicant already on bail for other charges – Mental health issues – Applicant may not be fit to stand trial – Delay – Exceptional circumstances established –No unacceptable risk – Bail granted – Bail Act 1977 – ss 1B, 3AAA, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Hancock	Criminal Lawyers Geelong
For the Respondent	Mr J Dickie	Office of Public Prosecutions

HER HONOUR:

Introduction

The applicant (‘Leigh M’) is 46 years old. On 25 May 2021, Leigh M was arrested and remanded by Constable Jordan Drue Robbins (‘the informant’) for the following charges (‘the Robbins charges’):

(a) Charges 1, 2 and 3: Use carriage service to menace contrary to s 474.17(1) of the Commonwealth Criminal Code Act 1995 (Cth)(‘the Code’), on 11, 12 and 13 April 2021 respectively;

(b) Charges 4, 5 and 6: Threat to inflict serious injury contrary to s 21 of the Crimes Act 1958 (‘Crimes Act’) on 11, 12 and 13 April 2021 respectively;

(c) Charges 7, 8 and 9: Commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (‘the Act’) on 11, 12 and 13 April 2021 respectively; and

(d) Charges 10 and 11: Contravene interim personal safety intervention order (‘PSIO’) contrary to s 100(2) of the Personal Safety Intervention Order Act 2010 on 11 and 13 April 2021.

Leigh M was refused bail in the Geelong Magistrates’ Court on 26 May 2021 and again on 2 July 2021. Leigh M was legally represented on both occasions by his current solicitor who has acted for him in the past. On each occasion, exceptional circumstance were found to be made out[1], but Leigh M was found to pose an unacceptable risk of committing an offence while on bail, and (on 2 July 2021) interfering with witnesses. Her Honour Magistrate Bolger noted on 26 May 2021 that Leigh M had an acute mental illness and recommended he be assessed as a matter of priority. On 2 July 2021, Magistrate Mellas noted that Leigh M was in the early stages of psychiatric treatment, and that he had a long-standing psychosis and problematic drug use.[2]
[1]Ms Hancock told the Court that despite the Magistrates’ Court extract from 26 May 2021 indicating that Magistrate Bolger was not satisfied of exceptional circumstances, her instructor’s recollection and notes indicate that her Honour was so satisfied.
[2]Notices of Order Made on 26 May 2021 and…

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 Application for Bail by LM

Details

AGLC: Re Application for Bail by LM [2021] VSC 623
Case: [2021] VSC 623
Decision Date: 23 September 2021

CaseChat Overview and Summary

The case of Re Application for Bail by LM involved the applicant, who was already on bail for other charges, being charged with using a carriage service to menace, threats to cause serious injury, and other related offences. The applicant also presented with mental health issues, raising concerns about their fitness to stand trial. The matter was heard in the Magistrates' Court of Victoria. The central legal issue the court had to address was whether the applicant, given their current mental health status and the seriousness of the charges, could be granted bail without posing an unacceptable risk to the community or the process of justice.

The court carefully considered the provisions of the Bail Act 1977, particularly sections 1B, 3AAA, 4AA, 4A, and 4E. The applicant's legal representative argued that exceptional circumstances existed due to the applicant's mental health issues, which could potentially affect their ability to participate in the trial. The prosecution opposed the bail application, citing the severity of the charges and the potential risk to the alleged victim. However, the court found that the exceptional circumstances were indeed established, as the applicant's mental health condition significantly impacted their capacity to understand and participate in their defence. Additionally, the court concluded that there was no unacceptable risk to the community or the judicial process if bail were granted, provided that appropriate conditions were imposed.

After weighing the factors, the Magistrates' Court determined that the applicant's bail could be granted. The court imposed stringent bail conditions to ensure compliance and to protect the community, including regular mental health check-ins and a curfew. The court recognised the importance of addressing the applicant's mental health needs while also safeguarding the rights of the alleged victim and the integrity of the judicial process. The final orders included the applicant being released on bail subject to the specified conditions, allowing for the continuation of their mental health treatment while awaiting trial.

Orders