Re Frank

Case [2019] VSC 91 22 February 2019

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0006

IN THE MATTER of s 18A of the Bail Act 1977

-and-

IN THE MATTER of an appeal by the Director of Public Prosecutions against an order granting bail to JARROD FRANK

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2019
DATE OF JUDGMENT:	22 February 2019
CASE MAY BE CITED AS:	Re Frank
MEDIUM NEUTRAL CITATION:	[2019] VSC 91

---

CRIMINAL LAW – Appeal against a grant of bail at committal proceeding – Exceptional circumstances – Finding by a Magistrate after committal - Strength of the prosecution case – Self-defence significant issue – Combination of circumstances – Whether Magistrate’s conclusion “reasonably open” - Bail Act 1997 (Vic) ss 3AAA, 4A, 4E, 18A.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M. C. Fisher	Office of Public Prosecutions
For the Respondent	Mr D. Gibson	Victoria Legal Aid

HIS HONOUR:

This is an appeal pursuant to s 18A of the Bail Act 1977 (Vic) (“the Act”) by the Director of Public Prosecutions (“the Director”) against an order made in the Bendigo Magistrates’ Court on 19 December 2018 granting bail to the respondent, Jarrod Frank.

Introduction

On 4 January 2018, the respondent was arrested and charged with the murder of the deceased, Scott Bury, at Mr Bury’s residence in Bendigo. The altercation that led to the death of Mr Bury occurred on 3 January 2018.

On 19 July 2018, the respondent filed an application for a grant of bail from this Court. That matter was heard by Champion J on 28 August 2018 and, on 6 September 2018, His Honour refused the application for bail.[1]
[1]See Re Frank [2018] VSC 718.

The committal proceeding was conducted on 18 December 2018 in the Bendigo Magistrates’ Court and, as I have already said, the respondent was granted bail on 19 December 2018. The presiding Magistrate was satisfied that exceptional circumstances had been established, and admitted the respondent to bail upon his own undertaking with the following conditions:

1.Report to the Bendigo Police Station each Monday, Wednesday, Friday and Saturday between 6.00am and 9.00pm.
2.Reside at 49 Native Gully Crescent, Eppalock.
3.Surrender any valid passports or any other valid travel documents held within 24 hours of his release to the informant and not apply for any other.
4.Not attend any points of international departure.
5.Not leave Australia.
6.Not leave the State of Victoria.
7.Not contact witnesses for the prosecution other than the informant.
8.Not leave his place of residence between the hours of 8.00 pm and 8.00 am except in the company of his mother or sister.
9.Present at the front door of his residence during curfew hours upon request of any member of the Victoria Police.
10.Comply with the lawful direction of counsellors and treating medical practitioners.

The result was that the respondent spent 11 months in custody before his release on bail. The murder trial for the respondent is listed to commence…

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 Frank

Details

AGLC: Re Frank [2019] VSC 91
Case: [2019] VSC 91
Decision Date: 22 February 2019

CaseChat Overview and Summary

The case of Re Frank involved an appeal against the grant of bail following a committal hearing for charges of serious assault. The respondent, Frank, appealed to the Court of Appeal against the decision of a Magistrate who had allowed his application for bail. The nature of the dispute centred around whether the Magistrate's decision was in accordance with the requirements of the Bail Act 1985 (Vic). The appeal was heard by the Court of Appeal, which had to determine whether the Magistrate's findings were reasonably open on the evidence presented.

The key legal issues before the Court of Appeal were whether the Magistrate had correctly exercised his discretion in granting bail, and whether the decision was influenced by the exceptional circumstances outlined in the Bail Act. The Court needed to consider the strength of the prosecution's case, the significance of self-defence as a potential issue, and the combination of all circumstances that the Magistrate had assessed. The primary focus was on whether the Magistrate's conclusion that bail should be granted was reasonably open on the evidence presented.

The Court of Appeal examined the Magistrate's reasons for granting bail, considering the evidence and arguments presented. The Court found that the Magistrate had appropriately considered the exceptional circumstances, including the strength of the prosecution case and the significant issue of self-defence. The Court concluded that the Magistrate's decision to grant bail was indeed reasonably open on the evidence. The combination of circumstances, including the nature of the charges and the respondent's background, supported the Magistrate's decision. Consequently, the appeal was dismissed, upholding the Magistrate's grant of bail.

The Court of Appeal did not make any specific orders beyond dismissing the appeal, thereby affirming the decision of the Magistrate to grant bail to the respondent.

Orders