Re Carthy - [2025] VSC 23

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2025 0004

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an Application for Bail by Justin CARTHY

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2025
DATE OF JUDGMENT:	4 February 2025
CASE MAY BE CITED AS:	Re Carthy
MEDIUM NEUTRAL CITATION:	[2025] VSC 23

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CRIMINAL LAW – Bail – Applicant charged with arson of a shop allegedly in the context of the ongoing ‘tobacco wars’ – Related dishonesty and other offending – Prima facie entitlement to bail – Substantial and relevant criminal history – Applicant on bail for other alleged offences and subject to a community correction order at time of alleged offending – Family support, stable residence, employment and bail guarantee available to applicant – Whether risk posed by applicant can be mitigated to an acceptable level by the imposition of conditions – Unacceptable risk established by respondent – Bail refused - Bail Act 1977 ss 1B, 3AAA, 4, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Slattery	KPT Defence Lawyers
For the Respondent	Mr A Sprague	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail on a large number of charges laid against him by Detective Leading Senior Constable Andrew Luke. The Nominal Informant is Detective Senior Constable Matthew Watts. The charges are as follows:

i. Criminal damage by fire (arson) – 7 July 2024

ii. Criminal damage by fire (arson) – 7 July 2024

iii. Theft of a motor vehicle – 7 July 2024

iv. Theft of a motor vehicle – 16 July 2024

v. Theft (diesel) – 11 July 2024

vi. Theft (number plate) – 5 July 2024

vii. Possession of a drug of dependence (cannabis) – 16 July 2024

viii. Possession of a prohibited weapon (taser) – 16 July 2024

ix. Failing to provide information or assistance for a data warrant – 16 July 2024

It is agreed between the parties that none of the charges faced by the applicant would enliven the two step bail process set out in section 4AA of the Bail Act 1977 (‘the Act’), and therefore the position is that this is a case in which the applicant has a prima facie entitlement to a grant of bail, pursuant to s 4 of the Act.

That is a reasonably rare position where applications for bail to this Court are concerned.

Procedural history

The applicant was arrested and charged with these matters on 16 July 2024. An application for bail to the Bail and Remand Court was refused on that date,[1] on the basis of an unacceptable risk that the applicant would endanger the safety or welfare of a person.
[1]The Applicant’s Affidavit in Support of an Application for Bail, affirmed 23 December 2024, states that bail was refused on 17 July 2024 on page [2], and 16 July 2024 on page [8]; the latter appeared…

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 Carthy

Details

AGLC: Re Carthy [2025] VSC 23
Case: [2025] VSC 23
Decision Date: 4 February 2025

CaseChat Overview and Summary

A person charged with the arson of a shop, allegedly in the context of the ongoing ‘tobacco wars’, applied for bail. The applicant was on bail for other alleged offences and subject to a community correction order at the time of the alleged offending. The applicant had a substantial and relevant criminal history. The applicant argued that they had family support, a stable residence, employment and a bail guarantee available to them. The court needed to determine whether the risk posed by the applicant could be mitigated to an acceptable level by the imposition of conditions.

The court considered the nature and seriousness of the offence, the circumstances in which the offence was allegedly committed, the applicant’s criminal history and any other matters that the court considered relevant. The court concluded that the applicant had established a prima facie entitlement to bail, but that the risk posed by the applicant could not be mitigated to an acceptable level by the imposition of conditions. The court found that the risk of reoffending was high given the applicant’s criminal history, the seriousness of the offence and the context in which it was allegedly committed. The court also considered the risk of interference with witnesses and the community.

The court refused the applicant’s application for bail. The court found that the risk of reoffending was unacceptably high given the applicant’s criminal history, the seriousness of the offence and the context in which it was allegedly committed. The court also found that the risk of interference with witnesses and the community could not be mitigated by the imposition of conditions. The court ordered that the applicant be detained in custody until the hearing and determination of the application for bail.

The court ordered that the applicant be detained in custody until the hearing and determination of the application for bail. The court ordered that the applicant be detained in custody until the hearing and determination of the application for bail. The court ordered that the applicant be detained in custody until the hearing and determination of the application for bail.

Orders