Re Cresswell - [2023] VSC 382

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0122

IN THE MATTER of the Bail Act 1977 (Vic)

- and –

IN THE MATTER of an application for bail by Anthony CRESSWELL

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2023
DATE OF RULING:	5 July 2023
DATE OF PUBLISHED RULING:	5 July 2023
CASE MAY BE CITED AS:	Re Cresswell
MEDIUM NEUTRAL CITATION:	[2023] VSC 382

---

CRIMINAL LAW – Application for bail – Charges of discharge firearm at a vehicle, reckless conduct endangering life, reckless conduct endangering serious injury, intentionally cause serious injury, recklessly cause serious injury, assault, prohibited person use firearm, use firearm in contravention of a firearm prohibition order, commit indictable offence whilst on bail, contravene conduct condition of bail, possess drug of dependence, use unregistered motor vehicle and fraudulently use registration label – Application opposed – Possibility of delay – Exceptional circumstances not made out – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms L Papadinas	Emma Turnbull Lawyers
For the Respondent	Ms G McMaster	Office of Public Prosecutions

HIS HONOUR:

On 16 January 2023, Anthony Cresswell (‘the applicant’) was arrested and subsequently remanded in custody after being charged by Detective Senior Constable Judd Darby with the following offences (‘the Darby matter’):

(a) discharge firearm at a vehicle;[1]
[1]Contrary to Firearms Act 1996, s 131A.

(a) reckless conduct endangering life;[2]
[2]Contrary to Crimes Act 1958, s 22.

(b) reckless conduct endangering serious injury;[3]
[3]Ibid s 23.

(b) intentionally cause injury (two charges);[4]
[4]Ibid s 18.

(c) recklessly cause injury (two charges);[5]
[5]Ibid.

(c) assault (common law) (two charges);

(d) prohibited person use firearm;[6]
[6]Contrary to Firearms Act 1996, s 5(1).

(d) use firearm in contravention of a firearm prohibition order;[7]
[7]Ibid s 112B.

(e) commit indictable offence whilst on bail (two charges);[8]
[8]Contrary to Bail Act 1977, s 30B.

(e) contravene conduct condition of bail (two charges);[9]
[9]Ibid s 30A(1).

(f) possess drug of dependence (two charges);[10]

(f) use unregistered motor vehicle;[11] and

(g) fraudulently use registration label.[12]

[10]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 73.

[11]Contrary to Road Safety Act 1986, s 7(1)(a).

[12]Ibid s 72.

The co-accused, James Bartlett, now currently on bail. His matter is resolved and is listed on 14 September 2023 in the Melbourne Magistrates’ Court for a summary jurisdiction application. I am told that while he seeks summary jurisdiction, that will be opposed by the prosecution because of the seriousness of the matter.

It is anticipated that, after the co-accused’s matter is finalised, he will provide an undertaking to give evidence against the applicant.

At the time of the alleged offending in the Informant Darby matter, the applicant was:

(a) on bail for charges issued by Detective Senior Constable Brooke Howarth on 25 February 2021. That matter resolved on 3 March 2023, with the applicant being sentenced…

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 Cresswell

Details

AGLC: Re Cresswell [2023] VSC 382
Case: [2023] VSC 382
Decision Date: 5 July 2023

CaseChat Overview and Summary

The case of Re Cresswell involved the applicant who was applying for bail in the face of serious charges. The charges included discharging a firearm at a vehicle, engaging in reckless conduct that endangered life, recklessly causing serious injury, assault, and multiple other related offences. The application was opposed, and the matter was heard in the Magistrates' Court of Victoria. The central issue for the court was whether the applicant should be granted bail, considering the gravity of the charges and the potential risk to the community if released.

The court had to determine if the applicant met the criteria for bail under the Bail Act 1977 (Vic), particularly in light of the seriousness of the charges and the potential for delay in the proceedings. The court considered the likelihood of the applicant attending court, the risk of reoffending, and the protection of the community. The applicant argued for bail on the basis of exceptional circumstances, but the court found that these had not been sufficiently demonstrated. The opposition argued that the applicant posed a significant risk to the community, which was supported by the nature and seriousness of the charges.

The court concluded that the applicant did not meet the criteria for bail, given the severity of the charges and the potential risk to the community. The court found that there was a real possibility of delay if the applicant were released, and that the applicant had not demonstrated exceptional circumstances warranting bail. Consequently, the application for bail was refused. The court emphasised the need to protect the community and the seriousness of the alleged offences in reaching its decision.

Orders