Re Co - [2021] VSC 412

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0151

IN THE MATTER of the Bail Act 1977	Crown
v
IN THE MATTER of an application for bail by CO	Accused

---

JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 July 2021
DATE OF RULING:	7 July 2021
CASE MAY BE CITED AS:	Re CO
MEDIUM NEUTRAL CITATION:	[2021] VSC 412

---

CRIMINAL LAW – Bail – Applicant charged with stalking and other offences – Whether a compelling reason exists justifying a grant of bail – Whether unacceptable risk – Bail granted with strict conditions – Bail Act 1977, ss 1B, 3AAA, 4AA, 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Rofe	Chester Metcalfe & Co
For the Respondent	Mr N Watt	Victoria Police

HER HONOUR:

Introduction

Corey O[1] (‘the applicant’), is 32 years old and has been on remand since 8 April 2021. He is charged by Senior Constable Billy Tsimiklis (‘the informant’) with the following charges (‘Tsimiklis charges’):
[1]Pseudonyms and initials are used throughout these reasons for those involved.

(a) Stalk another person (contrary to s 21A(1) of the Crimes Act 1958 (‘Crimes Act’) between March 2020 and 7 April 2021;

(b) Make threats to kill (contrary to s 20 of the Crimes Act) between 6 April 2021 and 7 April 2021;

(c) Threat to Destroy/Damage Property (contrary to s 198(a) of the Crimes Act) between 6 April 2021 and 7 April 2021;

(d) Threat to Inflict Serious Injury (contrary to s 21 of the Crimes Act) on 7 April 2021;

(e) Threat to Distribute Intimate Image (contrary to s 41DB of the Summary Offences Act 1966) on 7 April 2021; and

(f) Threat to Commit a Sexual Offence (contrary to s 43(1) of the Crimes Act) on 7 April 2021.

This is the applicant’s first time in custody. He has only one prior court matter in 2013, which resulted in a good behaviour bond.

The applicant was refused bail on the Tsimiklis charges at the Heidelberg Magistrates’ Court on 24 May 2021, on the basis that he had failed to show a compelling reason justifying the grant of bail and because he posed an unacceptable risk of committing an offence while on bail or endangering the safety or welfare of any person.[2]
[2]Certified Extract of Court Order made 24 May 2021 in the Heidelberg Magistrates' Court, Appendix B to the Report of Billy Tsimiklis (‘Informant’s Report’), annexed at NM-1 to the Affidavit in Response to an Application for Bail of Nicholas Moran sworn 28 June 2021 (‘Affidavit in Response’).

The Tsimiklis charges are next listed for Mention in the Heidelberg Magistrates’ Court on 9 August 2021.

Circumstances of the applicant’s alleged offending and arrest

The applicant and the complainant (AW) met in early 2020 at their workplace, a fresh food wholesale business in Melbourne’s Western suburbs. AW had moved to Melbourne in 2018, and was new to Australia. She did not know many people. 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 Co

Details

AGLC: Re Co [2021] VSC 412
Case: [2021] VSC 412
Decision Date: 7 July 2021

CaseChat Overview and Summary

In the matter of Re Co, the applicant was before the Court to seek bail from a charge of stalking and other related offences. The case was heard in the Magistrates’ Court of Victoria, where the primary issue was whether there existed a compelling reason justifying the granting of bail, considering the potential unacceptable risk to the victim. The court had to assess the balance between the rights of the applicant and the protection of the alleged victim, as well as the seriousness of the charges against the applicant.

The court examined the nature of the offences, the likelihood of reoffending, and the potential impact on the alleged victim. The applicant's history, including any previous convictions, character references, and ties to the community, were also considered. Additionally, the court evaluated the evidence presented by both the prosecution and the defence regarding the risk posed by the applicant if released on bail. The key legal issue was whether the applicant could be granted bail without posing an unacceptable risk to the alleged victim.

The court found that, despite the serious nature of the charges, there were compelling reasons to grant bail. These reasons included the applicant's strong ties to the community, the lack of any previous convictions, and the potential for rehabilitation. The court was satisfied that with appropriate conditions, including a curfew, electronic monitoring, and strict no-contact orders, the risk to the alleged victim could be mitigated. Therefore, the court exercised its discretion under the Bail Act 1977 to grant bail with strict conditions. The decision highlighted the importance of balancing the rights of the accused with the need to protect potential victims.

Orders