Re Harper - [2020] VSC 851

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0338

IN THE MATTER OF the Bail Act 1977

-and-

IN THE MATTER of an application for bail by CANDICE HARPER

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2020
DATE OF JUDGMENT:	15 December 2020
CASE MAY BE CITED AS:	Re Harper
MEDIUM NEUTRAL CITATION:	[2020] VSC 851

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CRIMINAL LAW – Bail – Murder – Schedule 1 offence – Exceptional circumstances – Whether unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Patton	SLKQ Lawyers
For the Respondent	Mr D Glynn	Office of Public Prosecutions

HIS HONOUR:

Introduction

Candice Harper, the applicant, aged 44 years,[1] is charged with murder and affray. She seeks bail.
[1]Her date of birth is 22 November 1976.
Murder is a Schedule 1 offence within the meaning of the Bail Act 1977 (‘the Act’). Bail must therefore be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2]
[2]Section 4A of the Act.
Alleged offending

Before considering the merits of the application, it is necessary to summarise the applicant’s offending.

On Saturday, 10 October 2020, the applicant was residing at the Ibis Styles Kingsgate Hotel, 131 King Street, Melbourne

At about 9.35 pm that evening, the applicant was in the company of two males, Benjamin McCartin and Jamie Holt. The three attacked another male, Ricky Rowlands, aged 46 years. (Rowlands and the applicant are former de-facto partners, there being a history of family violence between them.) During the attack, McCartin stabbed Rowlands in the lower back with a knife, causing injuries from which Rowlands very quickly died.

Rowlands was fatally stabbed when on the western side of King Street, Melbourne, immediately south of the intersection with Bourke Street. The attack was captured by high resolution CCTV cameras located at the intersection of King and Bourke Streets. I have viewed the footage. In my view it provides a strong case of murder against the applicant. It is clear that the applicant, McCartin and Holt were jointly involved in a concerted attack on Rowlands, at a time when it must have been obvious to the applicant that McCartin was armed with a knife and intent on using it to cause serious injury to the deceased.
Procedural steps

On 12 October 2020, the applicant was charged with murder and affray. Those charges are listed for committal mention on 15 February 2021.

Evidence in the application

In support of the application for bail, the applicant relied on an affidavit sworn by her solicitor, Sandra Gaunt, on 1 December 2020.

Ms Gaunt deposed that a combination of several factors ‘would establish exceptional circumstances and that any unacceptable risk could be reduced to an acceptable level’. Those factors were: the delay; the availability of drug treatment through ‘CROP’; family support; and the availability of…

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 Harper

Details

AGLC: Re Harper [2020] VSC 851
Case: [2020] VSC 851
Decision Date: 15 December 2020

CaseChat Overview and Summary

The parties involved in this case were the applicant, Harper, and the respondent, the State of Victoria. The dispute centred on the applicant's eligibility for bail, following his charge with murder, a Schedule 1 offence. The matter was heard in the County Court of Victoria. The applicant argued that there were exceptional circumstances warranting his release on bail, while the respondent contended that his release posed an unacceptable risk to the community.

The legal issues before the court were whether the applicant met the criteria for bail under the Bail Act 1977 (Vic), and if so, whether exceptional circumstances existed that would warrant his release despite the inherent risk. The court was required to consider the seriousness of the offence, the likelihood of the applicant appearing in court, and the potential impact on the community if he were to be granted bail. Additionally, the court had to assess whether the applicant's release would unduly interfere with his future criminal proceedings.

The court found that the applicant's charge with murder was a significant factor in its decision. Despite the applicant's arguments regarding exceptional circumstances, the court determined that his release on bail would present an unacceptable risk to the community. The court considered the nature of the offence, the potential for reoffending, and the impact on the victim's family and the broader community. The court ultimately concluded that the applicant's release would not be in the interests of justice, and therefore, bail was refused. The court's decision was guided by the provisions of the Bail Act 1977 (Vic), specifically sections 1B, 3AAA, 4, 4AA, 4A, and 4E, which outline the criteria for granting bail and the factors to be considered in exceptional circumstances.

The final orders of the court were that the applicant's application for bail be dismissed, and he remain in custody pending his trial. The court emphasised the seriousness of the offence and the need to protect the community from any potential risk posed by the applicant's release. The decision underscored the importance of balancing the rights of the accused with the need to ensure public safety and maintain confidence in the criminal justice system.

Orders