Re CD - [2017] VSC 721

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0236

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by CD

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2017
DATE OF JUDGMENT:	28 November 2017
CASE MAY BE CITED AS:	Re CD
MEDIUM NEUTRAL CITATION:	[2017] VSC 721

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CRIMINAL LAW – Bail – Murder – Requirement to show ‘exceptional circumstances’ – Whether exceptional circumstances made out – Whether unacceptable risk of failing to answer bail – Whether unacceptable risk of further offending – Whether unacceptable risk of endangering safety or welfare of members of the public - Exceptional circumstances not shown – Unacceptable risk of failing to answer bail – Unacceptable risk of further offending – Unacceptable risk of endangering safety or welfare of members of the public - Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B F Kissane QC with Mr D P Hannan	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr D A Dann QC with Dr M J Gumbleton	Melinda Walker

HIS HONOUR:

On 23 June 2016, the applicant was charged with the murder of one HM. At the time he was charged with HM’s murder, the applicant was in custody, serving a sentence that had been imposed upon him on 27 February 2012. On the day he was charged with HM’s murder, the applicant was due to be released on parole on 5 July 2016. After he was charged with the murder of HM, the order granting the applicant parole was revoked. The applicant has remained in custody since being charged with HM’s murder.

On 10 October 2017, the applicant filed an application for bail. Because the applicant is charged with murder, bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist which justify the making of a bail order.[1]
[1]Section 13(2) of the Bail Act 1977 (‘the Act’).

The grounds on which bail is sought

In his notice of intention to make application for bail, the applicant identifies the grounds upon which bail is sought as including:

(a) the circumstances in which the applicant came to be charged with murder ‘are themselves exceptional and give rise to a fundamental difficulty associated with the prosecution case’;

(b) there will be significant delay before the applicant can face trial;

(c) the applicant has been in custody since 2009;

(d) the applicant has been held in onerous conditions throughout most of his time in custody since 2009;

(e) the applicant’s time in custody was made even more onerous on account of the murder of his father while he was in custody;

(f) given the period of time the applicant has spent in custody since 2009, the applicant does not present with any drug or alcohol issues;

(g) the applicant has strong familial ties to the jurisdiction.

(h) the applicant has strong support within the community;

(i) the…

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 CD

Details

AGLC: Re CD [2017] VSC 721
Case: [2017] VSC 721
Decision Date: 28 November 2017

CaseChat Overview and Summary

In the matter of Re CD, the appellant sought bail following his arrest and charge with the offence of murder. The application was heard in the Supreme Court of New South Wales. The central issue before the court was whether the appellant had demonstrated exceptional circumstances warranting bail, and if not, whether the refusal of bail was justified due to the unacceptable risks associated with his release.

The court was tasked with determining whether the appellant had presented exceptional circumstances that would warrant his release on bail. Additionally, the court had to assess if there was an unacceptable risk that the appellant would fail to answer bail, engage in further offending, or endanger the safety or welfare of members of the public. The court considered the gravity of the charge, the appellant’s history, and the potential impact of his release on the community.

After careful consideration of the evidence and submissions, the court found that the appellant had not demonstrated exceptional circumstances that would warrant his release on bail. Furthermore, the court concluded that there was an unacceptable risk that the appellant would fail to answer bail, commit further offences, and endanger the safety and welfare of members of the public. Consequently, the court refused the appellant’s application for bail.

The court ordered that the appellant remain in custody pending the resolution of his criminal proceedings.

Orders