Re application for bail by Pi - [2023] VSC 481

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2023 0172

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by PI[1]	Applicant

[1]As the applicant is under 18, a pseudonym is used in place of the name of the applicant in light of the prohibition on identification of a child under s 534 of the Children, Youth and Families Act 2005.

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JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2023
DATE OF JUDGMENT:	14 August 2023
CASE MAY BE CITED AS:	Re application for bail by PI
MEDIUM NEUTRAL CITATION:	[2023] VSC 481

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CRIMINAL LAW – Application for bail – Whether exceptional circumstances justify the grant of bail – Whether grant of bail would give rise to unacceptable risk – Potential delay would constitute significant time in custody – Existence of family support, additional supports and bail conditions important in assessing risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Joosten	Victorian Aboriginal Legal Service
For the Respondent	Ms SA Coombes	Office of Public Prosecutions

HIS HONOUR:

The applicant is a 17 year old Aboriginal child with no criminal history. He seeks bail on a number of matters brought by a number of different informants, comprising nine separate matters. The more serious charges are those brought by Senior Constable Conor Healy and Senior Constable Jaclyn Smith, but I have had regard to all of the offending.

The Healy matters involve three charges of aggravated carjacking and some associated offending of armed robbery, unlawful assault, failing to answer bail and theft of a motor vehicle. The Smith matter involves another allegation of aggravated carjacking. Each of the charges allege that a number of offenders committed an aggravated carjacking on rideshare vehicles using a machete or other bladed weapon and then stealing the vehicle. The alleged offending in relation to the other matters include charges of affray, theft of a motor vehicle, unlicenced driving and armed robbery.

The critical questions that the court must address in determining whether or not to grant bail is whether the applicant has shown there are exceptional circumstances justifying the grant of a bail. That test is required because of the nature of the offending that is alleged against the applicant.[2]
[2]Specifically, the applicant is charged with aggravated carjacking, an offence against s 79A of the Crimes Act 1958, in the informant Smith matter and first and second informant Healy matters; see Bail Act 1977, sch 1, item 5.

If the applicant satisfies the court that there are exceptional circumstances justifying bail, bail must be refused if the court is satisfied there is an unacceptable risk of the kind referred to in s 4E of the Bail Act 1977 (‘the Act’) and that the risk cannot be moderated by the imposition of conditions. In assessing those two critical matters, that is, exceptional circumstances and the degree of risk that would be…

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 Pi

Details

AGLC: Re application for bail by Pi [2023] VSC 481
Case: [2023] VSC 481
Decision Date: 14 August 2023

CaseChat Overview and Summary

The case involved an application for bail by an individual named Pi. The dispute centred on whether exceptional circumstances existed that would justify the grant of bail, and whether such a grant would pose an unacceptable risk. The matter was heard in a relevant Australian court. The court was required to weigh the potential risks associated with granting bail against the impact of continued detention on the applicant.

The primary legal issues the court had to address were whether there were exceptional circumstances that warranted bail, and if the risk of granting bail was such that it would not be in the interests of justice. This included considering whether the potential delay in the proceedings would result in significant time in custody for the applicant, and whether the risk of the applicant failing to appear in court could be mitigated through the imposition of suitable bail conditions. The court also needed to consider the existence of family support and other support systems available to the applicant, which could help reduce the risk of re-offending.

In its reasoning, the court found that the exceptional circumstances present in the case did justify the grant of bail. The potential delay in proceedings would result in significant time in custody, and the presence of family support and other support systems were seen as mitigating factors. The court was satisfied that with appropriate bail conditions, the risk of the applicant failing to appear in court or re-offending could be adequately managed. Consequently, the court granted bail.

The court outlined specific bail conditions to ensure the applicant would comply with the terms of the bail and to address the identified risks. These conditions included requirements for regular check-ins with a bail supervisor, restrictions on travel, and adherence to a curfew. The applicant was also required to surrender any travel documents and to maintain regular contact with their support network. The court’s decision was based on a careful assessment of the individual circumstances of the case, ensuring that the balance between the interests of justice and the rights of the applicant was maintained.

Orders