Re Application for Bail by Tyler Foxwell - [2013] VSC 716

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0206 of 2013

IN THE MATTER of the Bail Act 1977 (Vic)

And

IN THE MATTER of an Application for Bail by TYLER FOXWELL

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 DECEMBER 2013
DATE OF RULING:	19 DECEMBER 2013
CASE MAY BE CITED AS:	Re Application for Bail by TYLER FOXWELL
MEDIUM NEUTRAL CITATION:	[2013] VSC 716

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BAIL – Application for bail – Exceptional circumstances – Delay – Personal circumstances of applicant – Significant untreated substance abuse issues - Unacceptable risk of further offending demonstrated – Bail refused - s 4(2)(aa)(i), 4(2)(d) Bail Act 1977 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	L Ristivojevic	Altius Partners Lawyers
For the Respondent	J Saunders	Office of Public Prosecutions

HIS HONOUR:

The applicant, Tyler Foxwell, was arrested on 18 October 2013 charged with trafficking in a drug of dependence namely methylamphetamine in a quantity not less than a large commercial quantity between 12 April 2013 and 18 October 2013. He was charged with 44 further offences, including trafficking in amphetamine, Alprazolam (Zanax), ecstasy, GHB, and anabolic steroids. He was also charged with possession of such drugs. He was charged with various other property and dishonesty offences. In all, he faces 45 charges.

By reason of some of the offences with which he is charged, s 4(2)(aa)(i) of the Bail Act requires that a court shall refuse bail unless the court is satisfied that exceptional circumstances exist which justify a grant of bail.

In June 2012, police commenced an investigation into his activities. The police investigation included substantial surveillance activities between June and October 2013. During the course of telephone interception, police monitored almost 30,000 activations, SMS, data usage and calls. It is alleged that a significant proportion of the calls were drug trafficking related and involved the accused chasing money that was owed to him. Police allege that telephone intercepts contained coded conversations referring to various drug and money amounts. In addition, the applicant was under physical surveillance and vehicle intercepts when drugs of dependence were located, which, in conjunction with telephone interception evidence, are alleged to show that the applicant was trafficking in drugs. As a result of these intercepts approximately 28 grams of either amphetamine or methylamphetamine was located on at least two occasions when, police allege, the drugs located on interception were provided by the applicant.

Presently, six co-accused have also been charged, but investigations are continuing and further persons may yet be charged. Analysis of telephone intercept material is continuing and I was informed that approximately 5,000 calls are likely to be relied on in evidence. However, with the volume of material for analysis and the number of offenders, delays are already being experienced in preparation of the hand up brief.

Bail has twice been refused by a magistrate and the applicant is currently remanded for committal mention on 31 January 2014. The police brief of evidence is due to…

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 Tyler Foxwell

Details

AGLC: Re Application for Bail by Tyler Foxwell [2013] VSC 716
Case: [2013] VSC 716
Decision Date: 19 DECEMBER 2013

CaseChat Overview and Summary

Tyler Foxwell applied for bail under the Bail Act 1977 (Vic) in the County Court of Victoria. The applicant, Foxwell, faced serious charges and the prosecution opposed his application on the grounds of exceptional circumstances, including the risk of reoffending and his significant substance abuse issues. The court had to determine whether the exceptional circumstances justified refusing Foxwell's bail application.

The court examined whether the delay in Foxwell's application and his personal circumstances warranted a refusal under s 4(2)(aa)(i) and 4(2)(d) of the Act. It noted that Foxwell's untreated substance abuse was a critical factor, increasing the risk of reoffending. The court also considered the seriousness of the charges and Foxwell's history of offending. Given the combination of these factors, the court concluded that it was not satisfied that bail would ensure Foxwell's attendance at court or protect the community.

In light of the above, the court ruled that the exceptional circumstances warranted a refusal of bail. The court was particularly concerned about the risk of reoffending and the impact of Foxwell's substance abuse on his ability to comply with bail conditions. The court thus upheld the prosecution's opposition to the bail application. The final orders included a direction for Foxwell to appear in court on a specified date, with the bail application remaining refused.

Orders