Re Guillerme - [2021] VSC 883

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0216

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by SAMANTHA GUILLERME

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2021
DATE OF JUDGMENT:	16 September 2021
CASE MAY BE CITED AS:	Re Guillerme
MEDIUM NEUTRAL CITATION:	[2021] VSC 883

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Desmond	Stephen Peterson Lawyers
For the Respondent	Mr A Grant	Ms A Hogan, Solicitor of Public Prosecutions

HIS HONOUR:

Introduction

On 18 August 2021 the applicant filed an application for bail in this Court. Because she is charged with murder, only this Court or a court committing her for trial has the authority to grant her bail. She has previously filed and withdrawn an application for bail in this Court and I expressed the view at that time that the withdrawal of that application would be without prejudice to any further application she sought to make.

Somewhat ironically, I suspect that she is in a stronger position in relation to this application than she might have been had the earlier application proceeded at the time it was made.

The applicable legislation

This application is governed by the Bail Act 1997 (Vic) (‘The Act’). I am required to have regard to the guiding principles in s 1B(1) when interpreting and applying the Act.[1] This includes, amongst other things, maximising the safety of the community and those affected by crime to the greatest extent possible, and taking into account the presumption of innocence and right to liberty.[2]
[1]The Bail Act 1977 (‘the Act’) s 1B(2).
[2]Ibid s 1B(1)(a)-(b).

Because the applicant is charged with the Schedule 1 offence of murder,[3] bail must be refused unless she satisfies the Court that exceptional circumstances exist that justify the grant of bail.[4] In considering whether the applicant has satisfied this test, the Court must have regard to the surrounding circumstances, including those relevant under s 3AAA(1).[5]
[3]Ibid sch 1, item 2.
[4]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[5]Ibid s 4A(3).

It is well-established that in order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal’.[6] Exceptional circumstances may be established by a single factor, or through a combination of factors, including personal factors relating to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[7]
[6]Re CT [2018] VSC 559 [64] (Champion J).
[7]Ibid [65].

In discussing factors commonly relied upon to establish exceptional circumstances, the Court of Appeal in Roberts v The Queen[8] says:

What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending…

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 Guillerme

Details

AGLC: Re Guillerme [2021] VSC 883
Case: [2021] VSC 883
Decision Date: 16 September 2021

CaseChat Overview and Summary

Samantha Guillerme applied for bail in the Supreme Court of Victoria in relation to her charge of murder. The Court was required to determine whether exceptional circumstances existed that justified the grant of bail. In considering the application, the Court was required to have regard to the guiding principles in the Bail Act 1977 (Vic) including, amongst other things, maximising the safety of the community and those affected by crime to the greatest extent possible, and taking into account the presumption of innocence and right to liberty. The Court found that exceptional circumstances did exist that justified the grant of bail. The applicant's criminal history was not significant, she had a history of mental health issues, and she had been drug-free for 11 months. The applicant had strong family support, was engaged with the Court Integrated Services Program, and would be subject to strict bail conditions. The Court found that the risk of the applicant interfering with witnesses or obstructing the course of justice could be mitigated by the imposition of appropriate conditions. The Court granted bail subject to a number of special conditions.

Orders