Re Carr - [2023] VSC 564

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0321

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by REBECCA CARR

---

JUDGE:	Kaye JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2023
DATE OF JUDGMENT:	19 September 2023
CASE MAY BE CITED AS:	Re Carr
MEDIUM NEUTRAL CITATION:	[2023] VSC 564

---

CRIMINAL LAW – Bail – Multiple charges including handle stolen goods, theft, driving while disqualified and committing indictable offence while on bail – Whether exceptional circumstances established – Whether unacceptable risk of re-offending and endangering public safety – Aboriginal heritage – Need for applicant to attend to Sorry Business – Difficult health issues in custody – Separation from young children - Bail granted with conditions – Bail Act 1977 ss 3AAA, 3A, 4A, 4D, 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A J McPhail	Law & Advocacy Centre for Women
For the Respondent (summary charges)	Mr P Pathmaraj	Victoria Police
For the Respondent (indictable charges)	Mr S Profitt	Office of Public Prosecutions

HIS HONOUR:

Between August 2019 and August 2023, the applicant was served with ten separate sets of charges. Since 7 August 2023, she has been remanded in custody on those charges. Two applications on her behalf for bail have been refused by the Magistrates’ Court. The applicant now applies to this Court for bail.

The alleged offending

The first set of charges was filed in the Sunshine Magistrates’ Court on 28 August 2019 by Constable Jordyn Briggs (‘the Briggs charges’). They included five charges of theft, three charges of handle stolen goods, five charges of driving while disqualified, and four charges of fraudulently using a registration plate. The charges concerned seven separate sets of offending that were alleged to have occurred between 12 March 2019 and 28 August 2019.

On the same date, 28 August 2019, Senior Constable Glen Hutton charged the applicant with 19 separate offences (‘the Hutton charges’). They included one charge of reckless conduct endangering serious injury, one charge of driving in a manner dangerous, two charges of entering an intersection against a red traffic light, two charges of driving a vehicle causing loss of traction, one charge of driving on the wrong side of the road. The offences were alleged to have been committed on 17 August 2019.

Following her arrest on 29 August 2019, the applicant was remanded in custody on the Briggs and Hutton charges. She was subsequently released on bail by the Sunshine Magistrates’ Court on 27 March 2020.

The third set of charges were laid by Constable Rory Hynan on 9 October 2020 (‘the Hynan charges’). They comprised one charge of driving while disqualified, one charge of contravening a condition of bail (not to drive a motor vehicle), and one charge of failing to give her name and address. The offending is alleged to have occurred on 12 May 2020. The applicant was released on bail on those charges.

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 Carr

Details

AGLC: Re Carr [2023] VSC 564
Case: [2023] VSC 564
Decision Date: 19 September 2023

CaseChat Overview and Summary

The case of Re Carr involved the applicant seeking bail from the Supreme Court of Victoria, facing multiple serious charges, including handling stolen goods, theft, driving while disqualified, and committing an indictable offence while on bail. The applicant's legal team argued for the granting of bail on the basis of exceptional circumstances, citing the applicant’s Aboriginal heritage, the need to attend to Sorry Business, significant health issues experienced in custody, and the detrimental impact of separation from young children. The prosecution opposed bail, asserting that the applicant posed an unacceptable risk of re-offending and endangering public safety.

The court was required to balance the presumption in favour of bail against the seriousness of the charges and the potential risks to the community. It needed to determine whether the exceptional circumstances presented by the applicant warranted a departure from the general rule and whether there were sufficient safeguards to ensure the applicant would appear in court and comply with bail conditions. The court considered the principles set out in the Bail Act 1977, particularly sections 3AAA, 3A, 4A, 4D, and 4E, which address the assessment of risk, the purpose of bail, and the exceptional circumstances that might justify granting bail.

The Supreme Court found that, despite the gravity of the charges, the exceptional circumstances presented by the applicant warranted a grant of bail. The court recognised the applicant’s need to participate in cultural obligations, the adverse health effects experienced in custody, and the importance of maintaining family connections. The court was satisfied that appropriate conditions could mitigate the risk of re-offending and protect the safety of the community. Consequently, the court granted bail with specified conditions designed to ensure the applicant’s attendance at court and adherence to the terms of bail.

The final orders included conditions such as the applicant reporting to a designated address, adhering to a curfew, refraining from contact with certain individuals, and participating in any required supervision or monitoring. The court also noted that these conditions would facilitate the applicant's ability to address their health needs and cultural obligations while in the community.

Orders