Re Chambers - [2020] VSC 758

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0269

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by DAVID CHAMBERS

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2020
DATE OF JUDGMENT:	29 October 2020
DATE OF REASONS	17 November 2020
CASE MAY BE CITED AS:	Re Chambers
MEDIUM NEUTRAL CITATION:	[2020] VSC 758

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CRIMINAL LAW – Bail – 38 year old applicant with no prior convictions - Family violence offending against domestic partner – Reckless conduct endangering life arising from application of pressure to throat of complainant – Laryngeal fracture – Threat to kill – Contravening a family violence intervention order – Serious offending and reasonably strong prosecution case – First time in custody for applicant – Onerous conditions due to COVID-19 and mental state of applicant on remand due to withholding of prescription medication – Custody a particularly aversive and salutary experience in this case – Delay – Relationship now ended and situation in which offending arose no longer in existence – Availability of employment, stable accommodation, and drug support for applicant – Compelling reason established – Unacceptable risk not made out – Bail granted on stringent conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L Richter	James Dowsley & Associates
For the Respondent	Mr S Payne	Legal Services Department, Victoria Police

HIS HONOUR:

Introduction

The applicant applied for bail in respect of charges he faces for alleged offending against his partner. The charges are of:

·Reckless conduct endangering life (two charges);
·Aggravated assault of a female (six charges);
·Contravening a family violence intervention order (‘FVIO’);
·Recklessly causing injury; and
·Making a threat to kill.

Having heard the application, I granted bail to the applicant on strict conditions. I indicated that I would publish my reasons for the decision at a future time. These are those reasons.

Procedural history

The applicant was arrested and charged with these offences, and remanded in custody, on 15 October 2020. He remained in custody until the application before me.

He made an unsuccessful application for bail at Frankston Magistrates’ Court on 16 October 2020. The learned magistrate considered that a compelling reason had been shown to exist, but refused bail on the basis of an unacceptable risk.

At the time of the hearing of the application, the matters were next scheduled to come before the Frankston Magistrates’ Court for a further mention on 13 November 2020.

Preliminary issue as to applicable test

An issue arose as to the appropriate test applicable for a grant of bail in this case. It was the applicant’s position that the ‘compelling reason’ test applied because the applicant faces Schedule 2 charges. The respondent, on the other hand, submitted that the ‘exceptional circumstances’ test applied, because the applicant is accused of a Schedule 2 offence while on summons for another Schedule 2…

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 Chambers

Details

AGLC: Re Chambers [2020] VSC 758
Case: [2020] VSC 758
Decision Date: 29 October 2020

CaseChat Overview and Summary

In the matter of Re Chambers, the applicant was before the court seeking bail in relation to charges stemming from family violence offences against his domestic partner. The charges included applying pressure to the complainant's throat resulting in a laryngeal fracture, threatening to kill the complainant, and breaching a family violence intervention order. The applicant, aged 38 and with no prior convictions, faced a serious prosecution case and his first experience of custody. The case was complicated by the COVID-19 pandemic, which made custody particularly onerous due to the applicant's mental health issues exacerbated by the withholding of prescription medication while on remand. Additionally, the relationship between the applicant and the complainant had ended, and the circumstances that led to the offending no longer existed.

The legal issues before the court encompassed whether the applicant posed an unacceptable risk to the community if released on bail, and whether there were compelling reasons to grant bail despite the seriousness of the offending. The court was required to weigh the nature and seriousness of the offences, the strength of the prosecution case, the risk of reoffending, and the applicant's suitability for bail in light of his mental health, the conditions of custody, and the circumstances surrounding the offence. The court also had to consider the principles outlined in the Bail Act 1977, including the presumption of innocence and the right to liberty unless it can be shown that continued detention is necessary.

The court, after thorough deliberation, found that the applicant's offending, while serious, did not establish an unacceptable risk to the community. The court recognised the compelling reasons for granting bail, which included the applicant's lack of prior convictions, the circumstances of the offence no longer being present, and the availability of stable accommodation, employment, and drug support. The court also considered the particularly onerous conditions of custody due to COVID-19 and the applicant's mental health issues. Consequently, the court determined that bail was appropriate on stringent conditions to ensure the safety of the community and the likelihood of the applicant's appearance in court.

The final orders included stringent bail conditions to ensure the applicant's compliance with the court's directives and to mitigate any risk of reoffending. These conditions were tailored to address the specific circumstances of the case, including the applicant's mental health and the need for ongoing support. The court emphasised the importance of the applicant's adherence to these conditions to maintain public safety and to facilitate his appearance in court.

Orders