Re Barda - [2019] VSC 716

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0219

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER OF an Application for Bail by Mitchell Barda

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JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2019
DATE OF ORDERS:	30 October 2019
DATE OF REASONS:	31 October 2019
CASE MAY BE CITED AS:	Re Barda
MEDIUM NEUTRAL CITATION:	[2019] VSC 716

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CRIMINAL LAW – Application for bail – Charges of burglary, theft of motor vehicle, committing indictable offence whilst on bail, theft, attempting to forge prescription for drug of dependence, and using false document – Schedule 2 offending – Whether ‘exceptional circumstances’ made out – Potential for remand period to exceed term of imprisonment – Exceptional circumstances established – Whether applicant an ‘unacceptable risk’ – Therapeutic services available to applicant – Applicant’s partner due to give birth – Applicant not ‘unacceptable risk’ – Bail granted – Bail Act 1977 ss 3AAA(1), 4, 4AA(2)(c)(i), 4A(1A).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms D M Caruso	James Dowsley & Associates
For the Respondent	Mr P Collins	Victoria Police

HIS HONOUR:

The applicant, Mitchell Barda, was arrested on 1 October 2019. He faces two sets of charges involving offences said to have been committed in September and March 2019, respectively.

In the first matter, hereafter described as the ‘Martin matter’, the applicant is charged with burglary, theft of a motor vehicle, committing an indictable offence whilst on bail, and theft. These offences were all said to have been committed between 19 and 20 September 2019.

With regard to the second matter, which I shall call the ‘Smith matter’, the applicant is charged with theft of a motor vehicle, theft, attempting to forge a prescription for a drug of dependence, and using a false document. These offences were said to have been committed on 16 and 19 March 2019.

In an affidavit affirmed by the applicant’s solicitor in support of this application for bail, it was foreshadowed that the applicant will plead guilty to the charges brought by Smith. In this affidavit, it was indicated that he intended to contest the charges in the Martin matter. However, during the hearing of this application, counsel for the applicant informed the Court that fingerprint evidence had recently been disclosed to the defence, indicating that the applicant’s fingerprints had been located on the outside of the vehicle, the subject of the charges in the Martin matter. I will return to the significance of this development later in these reasons.

At the time of the offending giving rise to the Martin matter, the applicant was subject to two separate grants of bail. The first related to two sets of charges involving driving, dishonesty, and drug offences said to have been committed in March 2019. The second related to some seven charges involving drugs, driving, and various bail offences that are scheduled to be dealt with by way of contest mention at the Moorabbin…

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 Barda

Details

AGLC: Re Barda [2019] VSC 716
Case: [2019] VSC 716
Decision Date: 31 October 2019

CaseChat Overview and Summary

The applicant in this case, Barda, applied for bail from the ACT Supreme Court, facing multiple charges including burglary, theft of a motor vehicle, committing an indictable offence while on bail, theft, attempting to forge a prescription for a drug of dependence, and using a false document. The applicant was deemed a Schedule 2 offender under the Bail Act 1977, meaning that the court had to consider if exceptional circumstances existed to grant bail and whether the applicant posed an unacceptable risk to the community or would not comply with bail conditions.

The court needed to decide if the exceptional circumstances under section 3AAA(1) of the Bail Act were met, given the severity of the charges, and whether the applicant was an unacceptable risk to the community or likely to fail to comply with bail conditions under sections 4 and 4AA(2)(c)(i) respectively. The court also considered the availability of therapeutic services to the applicant, the imminent birth of the applicant's child, and the potential length of the remand period in relation to the term of imprisonment if convicted.

The court found that exceptional circumstances were established, primarily due to the potential for the remand period to exceed the term of imprisonment if convicted. The court also determined that the applicant was not an unacceptable risk to the community and that there were adequate therapeutic services available to address the applicant's needs. The imminent birth of the applicant's child further supported the exceptional circumstances argument. As a result, the court granted the applicant bail under sections 3AAA(1), 4, 4AA(2)(c)(i), and 4A(1A) of the Bail Act 1977.

The court ordered that the applicant be released on bail with conditions including electronic monitoring, regular check-ins with a bail supervisor, and restrictions on travel. The applicant was also required to attend any scheduled medical or therapeutic appointments. These orders were designed to ensure compliance with the bail conditions while allowing the applicant to prepare for the birth of their child and access necessary support services.

Orders