Re application for bail by Oakley - [2021] VSC 183

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0034

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by Cameron OAKLEY

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2020
DATE OF JUDGMENT:	19 April 2021
CASE MAY BE CITED AS:	Re application for bail by Oakley
MEDIUM NEUTRAL CITATION:	[2021] VSC 183

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CRIMINAL LAW – Murder - Application for bail refused – Exceptional circumstances not established.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Emma Turnbull Lawyers
For the Respondent	Ms R Harper	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

On 6 August 2019, Cameron Oakley (‘the applicant’) was arrested and charged with the murder of Lachlan Hutchins (‘the deceased’). He has been remanded in custody since that date.

On 4 March 2020, the applicant was committed to stand trial in this Court. The trial was originally listed to commence on 19 October 2020, but has since been adjourned to 26 April 2021 in light of COVID-19 restrictions.

On 13 October 2020, the matter came before me as an application for bail.[1] The applicant has not previously applied for bail in this matter. I refused the application and indicated that I would provide my reasons. These are those reasons.
[1]Only this Court, or a court committing a person for trial, can grant bail to a person accused of murder. See the Bail Act 1977, s 13(2) (‘the Act’).

The applicable legislation

Murder is a Schedule 1 offence within the meaning of the Bail Act 1977 (‘the Act’).[2] It follows that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[3] In determining whether exceptional circumstances exist, the Court is required to take into account the ‘surrounding circumstances’ outlined in s 3AAA of the Act.[4]
[2]Bail Act 1977 (Vic) (‘the Act’) sch 1, item 2.
[3]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[4]Ibid s 4A(3).

A significant issue at the trial of this matter will be whether the applicant can establish the defence of self-defence and, if established, whether the prosecution would then be unable to disprove self-defence beyond reasonable doubt. If successful, the applicant will be acquitted of murder, although a charge of manslaughter may be open. This Court has previously held that if, on a proper analysis of the evidence, there is a good prospect of a verdict less than murder, such a finding is capable of meeting the threshold of exceptional circumstances justifying the grant of bail.[5]
[5]Memery v The Queen [2000] VSC 495.

More recently, the Court of Appeal in El Nasher v Director of Public Prosecutions[6] held that a combination of delay, onerous custodial conditions, and the relative weakness of the prosecution case may, when considered with all relevant circumstances, compel the conclusion that exceptional circumstances have been established.
[6][2020] VSCA…

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 Oakley

Details

AGLC: Re application for bail by Oakley [2021] VSC 183
Case: [2021] VSC 183
Decision Date: 19 April 2021

CaseChat Overview and Summary

Oakley was the respondent in an application for bail in the Federal Circuit and Family Court of Australia. The applicant was seeking bail pending the outcome of a trial for murder. The application was opposed by the Commonwealth.

The court had to determine whether the applicant had satisfied the threshold test for bail under s 46A of the Criminal Code Act 1995 (Cth) and, if so, whether the balance of considerations under s 46A(3) favoured the grant of bail. The primary consideration was the seriousness of the offence. The court also considered the applicant’s criminal history, the risk of flight and offending while on bail, the need for the applicant to answer the charge, the views of the victim, and any other matters it considered relevant.

The court found that the applicant had not satisfied the threshold test for bail because the offence of murder was an exceptionally serious offence and the applicant’s criminal history was significant. The court further found that even if the threshold test had been satisfied, the balance of considerations did not favour the grant of bail. The seriousness of the offence, the views of the victim, and the risk of offending while on bail were all powerful considerations against the grant of bail. The court did not accept that the applicant had established exceptional circumstances warranting an exception to the general rule against bail for such a serious offence.

The application for bail was refused.

Orders