JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2021
DATE OF JUDGMENT:	9 August 2021
CASE MAY BE CITED AS:	Re Hooper (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 476

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CRIMINAL LAW - Bail – Planned murder of husband of applicant by group of offenders – In retribution against victim due to suspected sexual abuse of children – Second application for bail – New facts and circumstances conceded by prosecution – Long delay – Difficult conditions in custody due to implications of COVID-19 pandemic – Significance of Aboriginality of applicant – Applicant the mother of seven children who also identify as Aboriginal - Strong family, cultural and community supports - Limited prior convictions – Exceptional circumstances established – No unacceptable risk - Bail granted – Bail Act 1977 ss 1B, 3AAA, 3A, 4, 4AA, 4A, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McMahon SC with Ms A Dixon	Law & Advocacy Centre for Women
For the Respondent	Mr R Gibson QC with Ms B Golding	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Jana Hooper, the applicant, applies for bail for the second time in respect of charges she faces of murder, aggravated home invasion, kidnapping, false imprisonment and intentionally causing injury.

The parties agree that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail. This is because the applicant is accused of committing two Schedule 1 offences, namely, murder and aggravated home invasion.[1]
[1]Bail Act 1977 (Vic), ss 3, 4A(1A), 4AA(1) and Schedule 1, items 2 and 4.

The respondent opposes a grant of bail on the basis that exceptional circumstances have not been made out, and on the additional basis that even if exceptional circumstances have been established, the applicant poses an unacceptable risk of interfering with witnesses, namely the applicant’s children.

Procedural history

The applicant has been in custody since her arrest for these offences on 4 April 2019.

The previous application for bail proceeded before me on 9 April 2020. The application for bail was founded on a combination of matters relied upon in proof of exceptional circumstances. Most important amongst those were the asserted weakness of the prosecution case, the likely delay as it was put at that time of the order of three years between arrest and trial, and the fact that there was no assertion by the prosecution during the application that the applicant posed an unacceptable risk of any of the matters set out in s 4E of the Act.

On 15 April 2020, I refused bail because I was not satisfied that exceptional circumstances had been established.[2]
[2]Re Hooper [2020] VSC 179R (‘Re Hooper’).

At the time 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 Hooper

Details

AGLC: Re Hooper (No 2) [2021] VSC 476
Case: [2021] VSC 476
Decision Date: 9 August 2021

CaseChat Overview and Summary

The case of Re Hooper involved an application for bail by the applicant, who was in custody awaiting trial for her involvement in the planned murder of her husband. The prosecution conceded new facts and circumstances, including that the murder was intended as retribution for the victim's suspected sexual abuse of children. This was the applicant's second application for bail. The court had to consider the impact of the COVID-19 pandemic on the applicant's conditions in custody, her Aboriginality, and her role as the mother of seven children who also identify as Aboriginal. The court also had to weigh these factors against the risk that the applicant would not appear for trial.

The primary legal issue was whether the applicant had established exceptional circumstances to justify bail, in light of the seriousness of the offence and the risk of non-appearance. The court had to balance the risk of non-appearance against the significant impact of the COVID-19 pandemic on the applicant's conditions in custody, the strength of her family, cultural, and community supports, and her limited prior convictions. The court also had to consider the significance of the applicant's Aboriginality and her role as the mother of seven children who also identify as Aboriginal.

The court found that the applicant had established exceptional circumstances, including the significant impact of the COVID-19 pandemic on her conditions in custody, the strength of her family, cultural, and community supports, and her limited prior convictions. The court also found that the applicant's Aboriginality and her role as the mother of seven children who also identify as Aboriginal were significant factors in favour of granting bail. The court found that there was no unacceptable risk of the applicant not appearing for trial. The court granted the applicant bail under the Bail Act 1977.

The court ordered that the applicant be released on bail subject to a range of conditions, including a requirement to reside at a specified address, a curfew, and a requirement to report to police on a regular basis. The applicant was also required to surrender her passport and any travel documents, and to refrain from contacting any witnesses in the case. The applicant was further required to comply with any other conditions that the court may impose from time to time.

Orders