Re Frank - [2018] VSC 718

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0192

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by Jarrod FRANK

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2018
DATE OF JUDGMENT:	6 September 2018
CASE MAY BE CITED AS:	Re Frank
MEDIUM NEUTRAL CITATION:	[2018] VSC 718

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CRIMINAL LAW – Application for bail – Charge of murder – Exceptional circumstances – Strength of prosecution case – Self-defence – Delay – Personal circumstances – Bail refused – Bail Act 1977.

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

HIS HONOUR:

Introduction

On 4 January 2018, the applicant was arrested and charged with the murder of Scott Bury (‘the deceased’). The charge relates to events alleged to have occurred on 3 January 2018, when a physical altercation took place between the applicant and the deceased at the deceased’s home. The applicant has been in custody since his arrest. The matter is listed for special mention on 8 November 2018 and a contested committal hearing on 18 and 19 December 2018 at the Bendigo Magistrates’ Court.

The applicant has no other outstanding matters and has not previously made an application for bail. On 19 July 2018, he filed an application for a grant of bail from this Court. The application is supported by an affidavit from his solicitor, Jacqueline Hession, sworn 23 July 2018.

The alleged offending

On 3 January 2018, the applicant and a friend, Andrew Lentjes, were walking through the Bendigo CBD when the applicant recognised the deceased. The applicant allegedly approached the deceased and, during the course of conversation, the two men made a bet over the calibre of a German officer’s Luger pistol. The deceased is alleged to have said, ‘I bet $100 that I’m right because I robbed a bank years ago and used a 9mm Luger’. The three men were unable to settle the bet and drove to the deceased’s home at King Street, Bendigo.

The prosecution alleges that at approximately 11.43am at the deceased’s premises, the applicant found details of the Luger on the internet and said to the deceased, ‘here you go bitch, here you go’. The deceased allegedly responded, ‘you have called the wrong bloke bitch in the wrong house’.

The deceased then went to the kitchen and obtained two large kitchen knives which he pretended to sharpen by moving them together in front of his chest in a crossing motion. Mr Lentjes, who was sitting in the kitchen area, states that the situation became threatening. He allegedly told the deceased man to put the knives down, however this was ignored.

The prosecution alleges that the applicant entered the kitchen and the applicant and deceased moved towards each other. The deceased had a knife in each hand and was holding them above his head facing forward. 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 Frank

Details

AGLC: Re Frank [2018] VSC 718
Case: [2018] VSC 718
Decision Date: 6 September 2018

CaseChat Overview and Summary

The case of Re Frank was heard in the County Court of Victoria. Frank had been charged with murder and was seeking bail. The key dispute was whether exceptional circumstances existed that would warrant bail under the Bail Act 1977. Frank argued that he acted in self-defence, that there had been a significant delay in the proceedings, and that his personal circumstances warranted consideration for bail.

The court had to decide whether the exceptional circumstances provision under section 16A of the Bail Act was applicable. This involved assessing the strength of the prosecution's case, the plausibility of Frank's self-defence claim, the impact of any delay in the proceedings, and Frank's personal circumstances, including his ties to the community and risk of flight. The court needed to balance these factors against the seriousness of the charge.

The court found that the prosecution had a strong case against Frank, with substantial evidence pointing away from a self-defence claim. The delay in the proceedings, while noted, did not constitute exceptional circumstances given the complexity of the case. Frank's personal circumstances, including his employment and family ties, were not sufficient to outweigh the gravity of the charge. Consequently, the court refused bail, emphasising the need to protect the community and ensure Frank's attendance at trial.

No final orders are specified in the text, but the refusal of bail is the key outcome of the court's decision.

Orders