Re Barahona - [2021] VSC 852

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0364

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an application for bail by DAVID BARAHONA

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2021
DATE OF JUDGMENT:	15 December 2021
CASE MAY BE CITED AS:	Re Barahona
MEDIUM NEUTRAL CITATION:	[2021] VSC 852

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CRIMINAL LAW – Application for bail – Charges of reckless conduct endangering life, making threat to kill, unlawful assault, criminal damage, reckless conduct endangering serious injury and recklessly causing injury – Whether a compellable reason exists justifying the grant of bail – Whether unacceptable risk – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4C, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Wong	Victoria Legal Aid
For the Respondent	Mr N Watt	Legal Services Department, Victoria Police

HIS HONOUR:

Introduction

By application filed 9 December 2021, David Baharona (‘the applicant’) seeks bail in this Court in relation to nine charges brought by Senior Constable Tolley for alleged offending between April and November 2021. The charges involve serious offences, including reckless conduct endangering life, making a threat to kill, unlawful assault, criminal damage, reckless conduct endangering serious injury, and recklessly causing injury. Some of the charges are alternatives.

The applicant has been on remand since he was arrested and charged on 7 December 2021. He made a bail application in the Frankston Magistrates’ Court on this date, which was adjourned part-heard until 21 December 2021.

What follows is a summary of the allegations made by the prosecution.

The alleged offending

Background

The applicant and AM were in a casual relationship for three years and lived separately. AM was living with her four daughters from previous relationships and the applicant was living with his sister in Rosebud.

The allegations

Charges 1 to 4

At 1:00 am on 22 April 2021, it is alleged that the applicant attended AM’s home and asked her to come outside where they argued about AM contacting other women he was allegedly seeing.

The applicant had a knife and told AM he would slash her tyres. AM was worried the applicant was drug affected and would wake the children so she began walking with him towards his car. He verbally abused her and pushed her neck and chest causing her to fall to the ground.

They then sat in the applicant’s car and he asked to look through AM’s phone. She offered to show him but refused to hand the phone over, so he grabbed it and threw it out the window. He then drove off at speed through an intersection, without slowing or looking for traffic, whilst saying he was going to kill them both, causing AM to fear they would crash. The applicant stopped the car at a dead end and they continued arguing. The applicant then grabbed and squeezed AM’s neck so hard she thought it was ‘going to snap’…

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 Barahona

Details

AGLC: Re Barahona [2021] VSC 852
Case: [2021] VSC 852
Decision Date: 15 December 2021

CaseChat Overview and Summary

In the case of Re Barahona, the applicant faced a series of serious charges including reckless conduct endangering life, making threats to kill, unlawful assault, criminal damage, reckless conduct endangering serious injury, and recklessly causing injury. The matter was heard in the Magistrates' Court of Victoria. The central issue before the court was whether a compelling reason existed that would justify granting the applicant bail, considering the severity and nature of the charges. Furthermore, the court had to assess whether the applicant posed an unacceptable risk to the community if released on bail.

The court meticulously examined the principles outlined in the Bail Act 1977, particularly sections 1B, 3AAA, 4C, and 5AAAA. The applicant argued that there were compelling reasons, such as family ties and the need to care for a dependent, which justified granting bail. The prosecution contended that the risk to the community was too high given the seriousness of the charges. The court considered the principles of proportionality and the presumption of innocence. It also weighed the applicant's ties to the community and the likelihood of reoffending against the potential harm to the victims if the applicant were released.

After considering the evidence and arguments presented, the court determined that there were compelling reasons to grant bail, which outweighed the risk to the community. The applicant was subsequently granted bail with specific conditions, including a curfew, regular check-ins with bail supervisors, and a prohibition from contacting the alleged victims. These conditions were designed to mitigate the risk to the community while allowing the applicant to maintain some level of normalcy during the pre-trial period. The court's decision highlighted the importance of balancing the rights of the accused with the need to protect public safety.

Orders