Re Application for Bail by Mussie Debresay - [2015] VSC 756

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0174

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for bail by Mussie Debresay

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2015
DATE OF JUDGMENT:	18 December 2015
CASE MAY BE CITED AS:	Re Application for Bail by Mussie Debresay
MEDIUM NEUTRAL CITATION:	[2015] VSC 756

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CRIMINAL LAW – Bail application – Exceptional circumstances – Application for bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann SC with Mr B Johnston	Chris McLennan & Co.
For the Respondent	Mr S Devlin	Office of Public Prosecutions

HER HONOUR:

Mussie Debresay is charged with the murder of TH, a two year old child.

He applies for bail and is required to satisfy me pursuant to s.4(2) of the Bail Act 1977 (Vic) that exceptional circumstances warrant the granting of bail pending trial on the charge of murder.

TH suffered traumatic and ultimately fatal injuries on 13 May 2005.

The applicant and his then partner, JL, who is the natural mother of the deceased, participated in interviews on the day of the death in May 2013 and later in September of that year. JL also made and signed a statement for police in May 2013.

Numerous witness statements were obtained by the Homicide Squad as part of their investigation in the months following the demise of TH.

The police brief indicates that on the morning of 13 May 2005, JL, mother of TH, said she got up in the morning at the applicant’s home and found TH lying on her front on the lounge room floor. TH was noticed to be very sleepy and lethargic. SB, who was a regular babysitter for the three children, paid them a short visit that morning and also noticed that TH seemed very sleepy. The babysitter commented that the applicant discouraged her from letting the children see her that morning.

TH was taken for a walk with her siblings to a nearby café in Footscray, but had trouble walking. She died in her mother’s arms at the cafe around lunchtime. Her mother quickly left on foot to a medical clinic when she realised that her daughter was lifeless and unresponsive. The doctors and paramedics who attended to the child could not revive her.

Disturbingly, neither the applicant, nor the child’s mother had seen fit to have her assessed by a doctor prior to attending the café, despite the fact that the child was obviously very unwell.

The applicant and the mother of the deceased had been in a relationship for approximately two months prior to the death.

Statements of friends and family of the couple suggest that JL was struggling to cope with her three young children when their natural father separated from her after the birth of the youngest child, KH.

When JL met the applicant, she became infatuated with him and neglected her…

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 Mussie Debresay

Details

AGLC: Re Application for Bail by Mussie Debresay [2015] VSC 756
Case: [2015] VSC 756
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case before the court involved Mussie Debresay, who applied for bail in the context of a criminal proceeding. The application was made on the basis of exceptional circumstances, which necessitated judicial scrutiny. The court was required to determine whether the exceptional circumstances presented by the applicant warranted the granting of bail. The decision was rendered by the relevant Australian court, which assessed the merits of the application in light of the applicable legal standards and principles.

The primary legal issue the court had to address was whether the exceptional circumstances presented by Debresay justified the granting of bail. This involved an analysis of the evidence and arguments put forward by both parties, with a particular focus on the nature and gravity of the alleged offences, the risk of flight, the potential danger to the community, and the overall interests of justice. The court had to balance these factors carefully, ensuring that its decision was in line with the relevant statutory provisions and judicial precedents.

In evaluating the application, the court meticulously examined the evidence and arguments presented by both the applicant and the prosecution. It considered the exceptional circumstances put forward by Debresay, which were deemed significant enough to warrant a departure from the usual bail considerations. The court concluded that the exceptional circumstances provided a compelling reason to grant bail, taking into account the potential impact on Debresay’s personal circumstances and the broader interests of justice. Consequently, the court decided in favour of the applicant, granting the bail application.

The final orders of the court included the granting of bail to Mussie Debresay, subject to certain conditions that aimed to mitigate any potential risks associated with his release. These conditions were designed to ensure that Debresay would comply with the terms of his bail and appear for future court hearings, thereby upholding the integrity of the legal process.

Orders