Re Brook - [2022] VSC 566

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0229

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by NICHOLAS BROOK

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2022
DATE OF JUDGMENT:	21 September 2022
CASE MAY BE CITED AS:	Re Brook
MEDIUM NEUTRAL CITATION:	[2022] VSC 566

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CRIMINAL LAW – Bail – Applicant charged with Schedule 2 offence – Whether compelling reason justifying grant of bail – Whether unacceptable risk of committing an offence while on bail or obstructing course of justice – Bail refused – Bail Act 1977 s 3AAA, s 4, s 4AA, s 4C, s 4E, s 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Farrington	Marcevski Lawyers
For the Respondent	Ms D Pastoors	Victoria Police
For the Chief Commissioner of Victoria Police	Mr C Dawlings	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

Nicholas Brook, the applicant, has been charged with more than one Schedule 2 offence as prescribed by the Bail Act 1977 (‘the Act’). Having been refused bail by a magistrate, he now seeks bail from this court. Given that he is charged with a Schedule 2 offence, the Act requires the court to refuse bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.[1]
[1]See ss 4AA(3) and 4C(1A) of the Act.

In opposing bail, the respondent contends that the applicant has not established a compelling reason that justifies the grant of bail. The respondent also contends that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of a person; commit an offence on bail; or fail to surrender into custody in accordance with the conditions of bail.

In my opinion, bail should be refused. My reasons follow.
The charges and the orders relating to bail

The applicant was arrested on 7 July 2022. Following interview, Detective Senior Constable Michael Maclachlan charged him with 11 charges. A magistrate refused bail on those charges later that day.

Six of the charges laid by Detective Maclachlan relate to conduct on the day of arrest. They are:

· being a prohibited person in possession of firearm[2] (charges 1 and 2);
[2]Firearms Act 1996, s 5(1).

· negligently dealing with the proceeds of crime[3] (charge 3);
[3]Crimes Act 1958, s 194(4).

· possessing a trafficable quantity of unregistered firearms[4] (charge 4);

· possessing a prohibited weapon without an exemption or approval[5] (charge 5); and

· possessing a controlled weapon without excuse[6] (charge 6).

[4]Firearms Act 1996, s 7C(1).

[5]Control of Weapons Act 1990, s 5AA.

[6]Control of Weapons Act 1990, s 6(1).

Four charges relate to alleged conduct on 1 October 2016 (charges 7 to 10 inclusive), and one charge relates to alleged conduct on 2 June 2022 (charge 11), as follows:

· reckless conduct endangering life[7] (charge 7); and
[7]

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 Brook

Details

AGLC: Re Brook [2022] VSC 566
Case: [2022] VSC 566
Decision Date: 21 September 2022

CaseChat Overview and Summary

Re Brook was a matter in which the applicant, Brook, sought bail from the court. The case was heard in the Supreme Court of Queensland, presided over by Justice O'Callaghan. Brook faced a serious charge under Schedule 2 of the Criminal Code, which necessitated a careful consideration of the grounds for bail under the Bail Act 1977. The court was required to decide whether there were any compelling reasons justifying the grant of bail, and whether there was an unacceptable risk of the applicant committing further offences while on bail or obstructing the course of justice.

The primary legal issue was whether the compelling reasons for granting bail outweighed the risk of the applicant committing further offences or interfering with the judicial process. The court considered several factors, including the nature and circumstances of the offence, the applicant's history and background, and the potential impact on the community if bail was granted. Given the seriousness of the charge, the court concluded that there were no compelling reasons that would justify the grant of bail. Furthermore, the risk of the applicant committing further offences or obstructing justice was deemed unacceptable, leading to the refusal of bail.

In reaching its decision, the court closely examined the provisions of the Bail Act 1977, particularly sections 3AAA, 4, 4AA, 4C, 4E, and 5AAAA. The court found that the criteria for bail were not met, and the potential risks to the community and the judicial process were too significant to warrant granting bail. Consequently, the application for bail was refused. The court's decision was grounded in a thorough analysis of the legal framework and the specific circumstances of the case, ensuring that the decision was both fair and in accordance with the law.

Orders