JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 APRIL 2014
DATE OF RULING:	3 APRIL 2014
CASE MAY BE CITED AS:	Re Application for Bail by TYLER FOXWELL (No. 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 145

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BAIL – Further application for bail – Whether new facts or circumstances have arisen – Assessment and treatment program now proposed for significant untreated substance abuse issues – fresh evidence of further delay – Exceptional circumstances previously established – Delay– Whether unacceptable risk of further offending demonstrated – Bail allowed on strict conditions - s 4(2)(aa)(i), 4(2)(d), 18AA Bail Act1977 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	J Hannebery	Altius Partners Lawyers
For the Respondent	J Singh	Office of Public Prosecutions

HIS HONOUR:

The applicant, Tyler Foxwell, is making his fourth application for bail. Bail has twice been refused by a magistrate and I refused his application to this court for bail on 19 December 2013. Tyler Foxwell is currently remanded for committal mention on 11 April, 2014.

Section 18 of the Bail Act 1977 permits an accused who has been refused bail and is in custody pending the hearing or trial of a charge to make a further application for bail. If it is reasonably practicable to do so, any such application is to be heard by a court constituted by the same judge or magistrate who heard the previous application for bail. However, s 18 AA of the provides that the court must not hear an application under section 18 unless the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail.

I published my reasons for refusing the third application for bail on 19 December 2013,[1] and I will treat those reasons as incorporated into this ruling and as read. I am persuaded that there are new facts and circumstances that have arisen since I refused bail to the applicant that warrant my reconsideration of whether he should be admitted to bail. Further, I am persuaded that the applicant should now be admitted to bail on strict conditions.
[1]Re Application for Bail by TYLER FOXWELL [2013] VSC 716.

The applicant submitted that the following matters were new facts or circumstances have arisen since my refusal of bail.

(a)The effluxion of time – In December 2013, the applicant had been in custody for two months. He has now been in custody for five and a half months, which appears to be an additional three and a half months of abstinence from the use of drugs.
(b)Further, during that additional period, the committal mention has been adjourned and it now appears that the mention will be further adjourned.
(c)The court is no longer faced with the building industry Christmas shutdown…

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 Foxwell (No 2)

Details

AGLC: Re Application for Bail by Tyler Foxwell (No. 2) [2014] VSC 145
Case: [2014] VSC 145
Decision Date: 3 APRIL 2014

CaseChat Overview and Summary

The case of Re Foxwell (No 2) involved the defendant, Foxwell, who had applied for bail for the second time. The primary concern was whether new facts or circumstances had emerged that warranted a reconsideration of the bail decision. The application was heard in the County Court of Victoria. The defendant had previously been denied bail due to concerns over the risk of reoffending while on bail. This time, the application was based on the introduction of a treatment program for the defendant's significant and previously untreated substance abuse issues, as well as fresh evidence regarding potential further delays in the trial.

The legal issues before the court included determining if the proposed treatment program constituted new facts or circumstances under the Bail Act 1977 (Vic), and whether these new facts, combined with the exceptional circumstances previously established, could justify a grant of bail. Additionally, the court had to consider whether the risk of reoffending, given the delay in the proceedings, had changed to the extent that it could be managed through strict bail conditions. The court was required to balance the defendant's right to liberty against the need to protect the community from potential harm.

The court found that the proposed treatment program for the defendant's substance abuse issues did constitute new facts or circumstances. It also determined that the exceptional circumstances previously established, including the significant delay in the trial, warranted a fresh consideration of the bail application. The court concluded that the risk of reoffending, while still present, could be sufficiently managed through strict bail conditions, particularly given the defendant's commitment to the treatment program. As a result, the court granted bail to Foxwell, subject to strict conditions aimed at mitigating the risk of reoffending and ensuring the defendant's compliance with the treatment program.

The final orders of the court included granting bail to Foxwell on strict conditions, such as regular reporting to a bail supervision officer, participation in the proposed treatment program, and adherence to a curfew. The court emphasised that any breach of these conditions would result in the immediate recall of bail. The decision highlighted the importance of considering new facts and exceptional circumstances when reviewing bail applications, particularly where there is evidence of significant personal issues that could be addressed through appropriate treatment and support.

Orders