Re Cassidy - [2022] VSC 491

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0199

IN THE MATTER of an application for bail
Between:
JOHNNY CASSIDY	Applicant
-and-
DIRECTOR OF PUBLIC PROSECUTIONS (VIC)	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2022
DATE OF ORDERS:	23 August 2022
DATE OF PUBLICATION OF REASONS:	25 August 2022
CASE MAY BE CITED AS:	Re Cassidy
MEDIUM NEUTRAL CITATION:	[2022] VSC 491

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CRIMINAL LAW — Application for bail — Where applicant, aged 21, charged with dishonesty and proceeds of crime offences involving alleged “roofing scams” — Whether, if bailed, unacceptable risk of offending or failing to answer bail — Where applicant, British national on tourist visa, arrested at airport attempting to return home (to United Kingdom) allegedly fearing arrest and charge — Where alternative explanation for return home — Where no prior convictions proved — Where applicant’s passport seized by police — Where applicant’s seventeen-year-old wife pregnant, unwell, wishes to stay in Victoria and offered her passport to police — Where applicant vulnerable in custody — Where applicant and wife have premises leased for twelve months, and, despite inability to work in Australia, supported by families from overseas — Where prosecution case appears weak — Where bail conditions can ameliorate risk of flight or offending on bail — Where delay of two to three years until trial — Where, if convicted, likely sentence to be well short of pre-trial incarceration if not bailed — No unacceptable risk — Bail granted on own undertaking, with conditions — Bail Act 1977 (Vic), ss 4, 4D & 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R de Kretser with Ms M Shanahan	Slades & Parsons
For the Respondent	Mr M Roper	Office of Public Prosecutions

HIS HONOUR:

Overview

Johnny Cassidy applies for bail. He is charged with six dishonesty or proceeds of crime offences arising out of alleged “roofing scams” committed with others.

The issue on this application is whether there is an unacceptable risk that, if granted bail, Mr Cassidy would fail to surrender into custody in accordance with the conditions of bail or commit an offence while on bail.

For the reasons that follow, I am not satisfied that any risk of the occurrence of those events is unacceptable.[1] Accordingly, bail must be granted, but with conditions.

Background

[1]On 23 August 2022, I heard and granted Mr Cassidy’s application, and made orders accordingly. On that day, I gave ex tempore reasons for my decision, but said that I would give more detailed written reasons later. These are those reasons, which, relevantly, are left in the present tense.

Arrest, charge, refusal of bail

On 31 July 2022, Mr Cassidy was arrested at Tullamarine Airport and charged with four offences. At that time, he and his wife were attempting to fly back to the United Kingdom, which is their home country.

On 2 August, Mr Cassidy applied to the Magistrates’ Court for bail, but that application was refused.

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 Cassidy

Details

AGLC: Re Cassidy [2022] VSC 491
Case: [2022] VSC 491
Decision Date: 25 August 2022

CaseChat Overview and Summary

The case of Re Cassidy involved a 21-year-old British national, who was the applicant, charged with dishonesty and proceeds of crime offences relating to alleged “roofing scams.” The applicant was arrested at Melbourne Airport as he attempted to return to the United Kingdom, purportedly fearing arrest and charge. The applicant had his passport seized by the police and his wife, who was pregnant and unwell, offered her passport to the police in lieu. The applicant and his wife had leased premises in Victoria for twelve months, and despite the applicant’s inability to work in Australia, they were supported by their respective families overseas. The applicant had no prior convictions. The prosecution’s case appeared weak, and the likely sentence, if convicted, would be significantly shorter than any pre-trial incarceration. The applicant was vulnerable in custody.

The primary legal issue before the court was whether the applicant, if granted bail, posed an unacceptable risk of offending or failing to answer bail. The court considered the applicant's background, the nature of the charges, and the circumstances surrounding his arrest. It also evaluated the strength of the prosecution's case and the potential consequences of granting or refusing bail. The court was required to determine whether there were sufficient bail conditions that could mitigate any identified risks.

The court found that the prosecution's case seemed weak, and the applicant, if convicted, would likely receive a sentence significantly shorter than any pre-trial incarceration. The court noted the applicant's vulnerability in custody and his family circumstances, including his pregnant wife's desire to remain in Victoria. The court concluded that there was no unacceptable risk of the applicant re-offending or failing to appear in court if bail was granted. The court considered that appropriate bail conditions could adequately address any potential risks. Therefore, the court granted bail on the applicant's own undertaking, accompanied by specific bail conditions.

The court ordered that the applicant be released on bail on his own undertaking, subject to the conditions set out in the judgment. The applicant was required to report to the specified police station, surrender his passport, and adhere to any other conditions deemed necessary by the court to ensure compliance with the bail terms. The court's decision balanced the applicant's right to liberty with the need to protect the community and ensure the applicant's appearance in court.

Orders