Re Barbaro - [2022] QSC 58

SUPREME COURT OF QUEENSLAND

CITATION:

Re Barbaro [2022] QSC 58

PARTIES:

IN THE MATTER OF AN APPLICATION FOR BAIL BY HARLEY JOE BARBARO

HARLEY JOE BARBARO

(applicant)

v
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)

(respondent)

FILE NO/S:

BS2814 of 2022

DIVISION:

Trial

PROCEEDING:

Application filed on 10 March 2022

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

14 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2022

JUDGE:

Burns J

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – CONDITIONS – where the applicant was in a show cause position pursuant to s 16(3)(a) of the Bail Act 1980 (Qld) – where it was proposed that the applicant be fitted with a monitoring device as a condition of his bail – where, when assessing whether there is an unacceptable risk that the applicant might, relevantly, offend whilst on bail, s 16(2A) of the Bail Act 1980 (Qld) precludes the court from having regard to the effect on that risk of imposing a condition that the defendant wear a monitoring device when on bail – whether there was an unacceptable risk that the applicant might, relevantly, offend whilst on bail – whether the applicant had shown cause why his continued detention in custody was not justified

Bail Act 1980 (Qld), s 11(1), s 11(9B), s 16(1)(a), s 16(2A), s 16(3)(a)

Criminal Code (Qld), s 77B, s 205A, s 339, s 340(1)(b) Penalties and Sentences Act 1992 (Qld), s 161Q

Lacey v DPP (Qld); Lacey v DPP (Qld) [2007] QCA 413, cited

COUNSEL:

M Longhurst for the applicant
B Berger for the respondent

SOLICITORS:

Maloney MacCallum Lawyers for the applicant
Office of the Director of Public Prosecutions (Qld) for the respondent

The applicant, Harley Joe Barbaro, seeks bail with respect to one charge of assault occasioning bodily harm whilst armed and in company (with a serious organised crime circumstance of aggravation[1]), one charge of contravening an order about information necessary to access information stored electronically and four charges of breach of bail.
[1]As to which, see s 161Q of the Penalties and Sentences Act 1992 (Qld).
These offences were allegedly committed whilst the applicant was on bail for other offences. Because of that circumstance and the further circumstance that two of the offences for which he now seeks bail are indictable offences,[2] he is in a show cause position by reason of s 16(3)(a) of the Bail Act 1980 (Qld). By that provision, bail must be refused unless the applicant satisfies the court that his continued detention in custody is not justified.
[2]The assault (Criminal Code (Qld), s 339) and the contravention offence (Criminal Code (Qld), s 205A).
The justification for detaining someone in custody pending trial is to be found in s 16(1)(a) of the Act. Relevantly to this case, bail must be refused where there is an unacceptable risk that the defendant, if released on bail, would (1) commit an offence or (2) endanger the safety or welfare of a person who is claimed…

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 Barbaro

Details

AGLC: Re Barbaro [2022] QSC 58
Case: [2022] QSC 58
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the matter of Re Barbaro, the applicant found himself in a show cause position under section 16(3)(a) of the Bail Act 1980 (Qld), with a proposal to fit him with a monitoring device as a condition of his bail. The applicant challenged the appropriateness of this condition, arguing that the court was precluded from considering the effect of such a condition on the risk of reoffending under section 16(2A) of the same Act. The legal issues revolved around whether there was an unacceptable risk that the applicant might offend while on bail and whether he had demonstrated sufficient cause to justify his continued detention in custody.

The court meticulously examined the statutory framework provided by the Bail Act 1980 (Qld). It determined that section 16(2A) indeed precluded consideration of the impact of a monitoring device on the risk of reoffending. Despite this, the court evaluated the overall risk of reoffending and found that the applicant had not demonstrated a sufficient cause to warrant his continued detention. The court concluded that there was no unacceptable risk of the applicant reoffending while on bail and dismissed the application.

The court's reasoning was grounded in a detailed analysis of the statutory provisions and the evidence presented. It found that the applicant's potential to offend while on bail was not significantly influenced by the proposed monitoring condition. The court was satisfied that the applicant had shown sufficient cause to justify his release on bail, leading to the dismissal of the application. The final orders were that the application be dismissed, reflecting the court's determination that the applicant's detention was not justified.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Barbaro [2022] QSC 58
PARTIES:	IN THE MATTER OF AN APPLICATION FOR BAIL BY HARLEY JOE BARBARO HARLEY JOE BARBARO (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QLD) (respondent)
FILE NO/S:	BS2814 of 2022
DIVISION:	Trial
PROCEEDING:	Application filed on 10 March 2022
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	14 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2022
JUDGE:	Burns J
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – BAIL – CONDITIONS – where the applicant was in a show cause position pursuant to s 16(3)(a) of the Bail Act 1980 (Qld) – where it was proposed that the applicant be fitted with a monitoring device as a condition of his bail – where, when assessing whether there is an unacceptable risk that the applicant might, relevantly, offend whilst on bail, s 16(2A) of the Bail Act 1980 (Qld) precludes the court from having regard to the effect on that risk of imposing a condition that the defendant wear a monitoring device when on bail – whether there was an unacceptable risk that the applicant might, relevantly, offend whilst on bail – whether the applicant had shown cause why his continued detention in custody was not justified Bail Act 1980 (Qld), s 11(1), s 11(9B), s 16(1)(a), s 16(2A), s 16(3)(a) Criminal Code (Qld), s 77B, s 205A, s 339, s 340(1)(b) Penalties and Sentences Act 1992 (Qld), s 161Q Lacey v DPP (Qld); Lacey v DPP (Qld) [2007] QCA 413, cited
COUNSEL:	M Longhurst for the applicant B Berger for the respondent
SOLICITORS:	Maloney MacCallum Lawyers for the applicant Office of the Director of Public Prosecutions (Qld) for the respondent