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Re Fairest

Re Fairest

Case [2015] VSC 375 29 July 2015

Bail

Exceptional Circumstances

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2015 0094

IN THE MATTER of an application for bail by Jake Royd FAIREST

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JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2015
DATE OF JUDGMENT:	29 July 2015
CASE MAY BE CITED AS:	Application for Bail: Jake Royd Fairest
MEDIUM NEUTRAL CITATION:	[2015] VSC 375

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CRIMINAL LAW – Bail – Murder – Applicant deaf and has severe cognitive and developmental difficulties – Evidence that applicant suffering significant hardship in custody – Exceptional circumstances demonstrated – Bail granted – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R J Sharp	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Mr D Gibson	Victoria Legal Aid

HIS HONOUR:

The applicant, Jake Fairest, aged 26, together with Georgia Fields and Warwick Toohey, is charged with the murder of Robert Wright. The deceased was apparently thrown from a balcony on 15 January 2015, and died three days later. It is alleged that the applicant was party to a joint criminal enterprise encompassing Mr Wright’s death, and involving as well the theft of various items of property belonging to the deceased to the value of about $500 belonging to the deceased.

All three co-accused have been in custody for some months, the applicant having been arrested on 12 February 2015. Ms Fields was granted bail by Kaye JA on 25 June 2015. Mr Toohey has not, at this stage, made any application for bail and therefore remains in custody.

A contested committal is scheduled to be heard on 17 August 2015. The applicant has not thus far sought bail, and has been in custody since arrest.

By reason of s 13(2) of the Bail Act 1977, bail is not to be granted to a person charged with murder unless that person satisfies the Court that exceptional circumstances exist which justify the making of such an order.

In that regard, there is unchallenged and incontrovertible evidence regarding the applicant’s personal circumstances. He is, and has been from about the age of seven, profoundly deaf. He also has severe cognitive and developmental disabilities which are the result of his having received aggressive chemotherapy when aged seven in order to treat a brain tumour. Further results of that treatment include stunted growth, a weakened spine and a growth hormone deficiency.

The applicant has a particularly low IQ. This has been measured as a verbal IQ of 48, and a full IQ of 60. That fact, coupled with his deafness, makes communication with him, whether verbally or in Auslan, extremely difficult.

The applicant has never been able to secure employment. Up until the date of his arrest, he lived with his father. He receives strong support from, and continues to have a positive relationship with, his father who sees him on a regular basis. He also maintains an amicable relationship with his mother and siblings, although it is fair to say that…

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 Fairest

Details

AGLC: Re Fairest [2015] VSC 375
Case: [2015] VSC 375
Decision Date: 29 July 2015

CaseChat Overview and Summary

In the case of Re Fairest, the applicant, who is deaf and has severe cognitive and developmental difficulties, was seeking bail in relation to a charge of murder. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether the exceptional circumstances had been demonstrated to warrant the grant of bail to the applicant, given the seriousness of the charge.

The court considered the nature and severity of the applicant's disabilities, as well as the evidence presented about the significant hardship the applicant was experiencing in custody. The applicant's legal representatives argued that the conditions of detention were exacerbating the applicant's disabilities and that, without bail, the applicant's health and wellbeing were at serious risk. The prosecution did not oppose bail but maintained that the charge of murder was a matter of significant gravity.

The court found that the applicant's disabilities and the evidence of significant hardship in custody constituted exceptional circumstances that warranted the grant of bail. The court recognised that the applicant's rights to health and dignity, as well as the need to avoid undue punishment before conviction, were important considerations. The court concluded that there was no point of principle in denying bail in this case, given the exceptional nature of the applicant's circumstances.

The orders of the court were that the applicant be granted bail, subject to certain conditions designed to ensure the applicant's appearance in court and to protect the safety of the community.

Orders