Re Barban & Barban - [2007] VSC 335

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION
PRACTICE COURT

No. 1536 of 2007

BAIL APPLICATION

IN THE MATTER of the Bail Act 1997

And

IN THE MATTER OF Applications for Bail of JOSHUA BARBAN and KARL ANTHONY BARBAN

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2007
DATE OF ORDER:	31 August 2007
CASE MAY BE CITED AS:	In the matter of Joshua Barban and Karl Anthony Barban
MEDIUM NEUTRAL CITATION:	[2007] VSC 335

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Criminal law – Applications for bail – Show cause situation – Delay – Likely effects of delay – Parity with co-offender – Whether unacceptable risk of further offending or endangering public – Applications granted subject to strict bail conditions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Skinner	Angela Connor, Solicitor for Public Prosecutions
For the Accused	Mr C Heliotis QC	Tony Hargreaves & Partners

HER HONOUR:

On 15 August 2007, the applicants, Joshua Barban and Karl Anthony Barban, were charged with numerous offences including intentionally causing serious injury and assault in company. Joshua Barban is charged with 18 offences, Karl Barban with 16 offences.

The charges arise out of an incident that occurred in the car park of a McDonalds store at East Doncaster on 4 August 2007. It is alleged that on that occasion the applicants and a male friend, Adrian di Gennaro, assaulted two men.

On 15 August 2007, both applicants applied for bail at the Melbourne Magistrates' Court. Bail was refused on the basis that the applicants were in a show cause situation and the magistrate found that there was an unacceptable risk of committing further offences. The applications to this court were made on 22 August 2007.

It is common ground that each applicant is in a “show cause” situation under s4(4) of the Bail Act 1977. The court is required to refuse bail unless the applicant shows cause why his detention in custody is not justified. The court is required to refuse bail if satisfied there is an “unacceptable risk” that if the applicant was released he would, as the Crown suggests, either commit further offences or otherwise endanger the safety and welfare of members of the public. The Crown does not allege in this case that there is any particular risk of either applicant failing to appear to answer bail. Here, there is considerable overlap between the factors which are said to show cause, and the issue of unacceptable risk, so it is not necessary for me to determine whether these involve a single question or a “two-step approach”.[1]
[1]As to which see the discussion by Maxwell P in Re Asmar [2005] VSC 487.

The case against the applicants

The incident was recorded by a surveillance camera at the McDonalds car park. It involved a vicious and cowardly attack. According to the summary of charges, many of the details of which were confirmed by oral evidence given by the informant, the following occurred.

The applicants and…

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 Barban & Barban

Details

AGLC: Re Barban & Barban [2007] VSC 335
Case: [2007] VSC 335
Decision Date: 31 August 2007

CaseChat Overview and Summary

In the case of Re Barban & Barban, the applicants, Barban and Barban, sought bail in the Supreme Court of Victoria. Their applications were made in the context of serious criminal charges, and the prosecution had argued that a show cause situation applied due to the gravity of the allegations. The primary legal issues before the court were whether the applicants had demonstrated sufficient grounds to justify the grant of bail, considering the delay in applying, the likely effects of the delay, and whether there was an unacceptable risk of further offending or endangering the public if bail were to be granted.

The court examined the delay in the applicants' bail applications, weighing it against the principles of justice and the rights of the applicants. It also considered the potential consequences of delay, including the impact on the applicants' preparation for trial and the public interest in the timely administration of justice. Furthermore, the court assessed whether granting bail would create an unacceptable risk of further offending or endanger the public, taking into account the nature of the charges and the applicants' backgrounds. In light of the strict bail conditions proposed, which included electronic monitoring and stringent reporting requirements, the court concluded that the balance of considerations favoured the grant of bail.

After thorough deliberation, the court found that the applicants had sufficiently demonstrated grounds for the grant of bail. The delay in applying for bail was not deemed fatal, and the proposed bail conditions were considered adequate to mitigate any risk of further offending or danger to the public. Consequently, the court granted the applications for bail, subject to the strict conditions that were outlined. This decision underscores the court's commitment to balancing the rights of the accused with the need to protect public safety and ensure the efficient administration of justice.

Orders