Re Barden (Bail Application) - [2015] VSC 493

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0122

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by Timothy BARDEN

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2015
DATE OF JUDGMENT:	11 September 2015
CASE MAY BE CITED AS:	Re Barden (Bail Application)
MEDIUM NEUTRAL CITATION:	[2015] VSC 493

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CRIMINAL LAW – Bail – Applicant charged with extortion and other offences – Applicant required to show cause why his detention in custody not justified – Whether applicant an unacceptable risk – Bail Act 1977, s 4(4), s 4(2)(d)(i) – Robinson v The Queen [2015] VSCA 161 – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Gauld (Solicitor)	Cameron Gauld (for Victoria Police)
Applicant in person

HIS HONOUR:

Introduction

Timothy Barden, the applicant, seeks bail from this Court.

For the reasons that follow, the application for bail should be refused.

The applicant is aged 35 years.

On 1 April 2015, following the execution of a search warrant at his residential address, the applicant was arrested, and was charged with the following offences:

·extortion with threat to kill (charge 1);
·theft of a motor vehicle (charges 2, 3, 4 and 5 );
·possession of a drug of dependence, methylamphetamine (charge 6);
·being a prohibited person in possession of a firearm (charge 7);
·receiving stolen goods (charge 8);
·dealing with property suspected of being the proceeds of crime (charge 9) ;
·possessing a prohibited weapon (charge 10);
·possessing cartridge ammunition (charge 11);
·possessing a firearm without a serial number (charge 12); and
·committing an indictable offence while on bail (possession of methylamphetamine) (charge 13).

Mr Barden has pleaded not guilty to charges 1 and 2, and 4 and 5. Charge 3 was withdrawn. He has indicated his intention to enter a plea of guilty to charges 6 to 13 inclusive.

In the circumstances, the Court cannot grant bail unless the applicant is able to show cause why his detention in custody is not justified. Section 4(4) of the Bail Act 1977 (‘the Act’) relevantly provides:

(4)       Where the accused is charged—
(a)       with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence;
…
(d)      with an offence against this Act—
the court shall refuse bail unless the accused shows cause why his detention in custody is not justified …

Previous bail applications

The applicant has made several previous application to the Magistrates’ Court for bail.

On 2 April 2015, at the Magistrates’ Court at Warrnambool, the magistrate refused bail because the applicant had failed to ‘show cause’, and was deemed to pose an unacceptable risk of interfering with witnesses.

A further bail application made on 27 April 2015 to the Magistrates’ Court at Warrnambool was again refused because the applicant had failed to show cause, and was deemed to pose an unacceptable risk.

A further…

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 Barden (Bail Application)

Details

AGLC: Re Barden (Bail Application) [2015] VSC 493
Case: [2015] VSC 493
Decision Date: 11 September 2015

CaseChat Overview and Summary

The matter before the court involved Barden, who had been charged with multiple offences including extortion. The issue at hand was whether the applicant should be released on bail pending the outcome of his criminal proceedings. The court considered the statutory criteria under the Bail Act 1977 to determine the appropriate course of action. Specifically, the court examined whether Barden posed an unacceptable risk to the community if released on bail, in accordance with section 4(4) of the Act, and whether his detention in custody was justified under section 4(2)(d)(i). The court also referred to the principles outlined in Robinson v The Queen, a decision of the Victorian Court of Appeal.

The legal issues before the court required an assessment of Barden’s risk factors, including the seriousness of the charges, the likelihood of reoffending, and the impact of his detention on his mental health. The court evaluated the evidence presented regarding Barden’s criminal history, character, ties to the community, and the nature of the alleged offences. The court had to balance the presumption in favour of bail with the need to protect the community and ensure that Barden would attend his trial.

In considering the application, the court found that Barden’s alleged offences, particularly extortion, indicated a significant threat to the community. The seriousness of the charges, coupled with Barden’s criminal history, suggested that he posed an unacceptable risk if released on bail. The court also noted that Barden had failed to demonstrate any substantial ties to the community or compelling reasons why his detention was unjustifiable. Therefore, the court concluded that it was not satisfied that the conditions of bail could reasonably ensure Barden’s attendance at trial or protect the community from harm. The application for bail was refused.

Orders