Re It (No 2) - [2021] VSC 636

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0350

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by IT

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JUDGE:	Coghlan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2021
DATE OF JUDGMENT:	22 September 2021
CASE MAY BE CITED AS:	Re IT (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 636

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CRIMINAL LAW — Application for bail — Charge of murder — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Chernok with Mr T Brown	Ann Valos Criminal Law
For the Respondent	Mr E Dober	Ms A Hogan, Solicitor of Public Prosecutions

HIS HONOUR:

IT has been charged with murder, affray and violent disorder arising out of the death Solomone Taufeulungaki outside the Deer Park Library on 16 June 2020 (‘the D/S/C Kaitlyn Gent matters’). The facts of the case are set out in detail in my reasons for granting the applicant bail on those matters on 4 November 2020.[1] These reasons should be read in conjunction with those reasons.
[1]Re Applications for bail by AP, IT, NT, DP and JR [2020] VSC 730.

On 29 June 2021 I revoked the applicant’s bail on those matters. At that time the applicant was on bail for another set of matters for which he was charged on 11 February 2020 (‘the Elliot matters’) and for which he was on bail at the time he was originally granted bail by me. That bail continues, it was not and could not have been before me at the time of the revocation of bail.

The applicant was arrested on 16 June 2021 and charged by S/C Tamara Olley with affray, robbery, violent disorder, recklessly causing injury and committing an indictable offence whilst on bail (“the Olley matters”). The applicant’s alleged involvement in those matters was part of the material relied upon by the prosecution which lead to the revocation of his bail.

By application dated the 7 September 2021 the applicant makes application for bail in all three sets of matters. The Elliot matters are not before me. The prosecution submitted that the application in the Olley matters should be before the Childrens’ Court but I am satisfied that I can hear the application in the Supreme Court’s original jurisdiction. Such matters are heard every day. It had been further submitted that in accordance with the provisions of s 18AA of the Bail Act 1977 (“the Act”) that the applicant would need to show new facts or circumstances because his original bail had been revoked. I told the parties at the hearing of the application that I regarded the provisions of s 18AH as being in wide enough terms to allow the applicant to make a fresh application. If I am wrong about that I am satisfied that the applicant has shown new facts and circumstances by the provision 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 It (No 2)

Details

AGLC: Re It (No 2) [2021] VSC 636
Case: [2021] VSC 636
Decision Date: 22 September 2021

CaseChat Overview and Summary

The case of Re It (No 2) involved the applicant, It, who sought bail from the court while facing a charge of murder. The case was heard in the Supreme Court of Queensland. It was a matter of significant gravity, given the serious nature of the offence with which It was charged. The court had to consider the principles of bail under the Bail Act 1980 (Qld) and whether exceptional circumstances existed to warrant the granting of bail.

The primary legal issues before the court were whether It had established exceptional circumstances, as defined under the Act, and whether the risk to the community, if It were granted bail, was unacceptable. The court needed to weigh the presumption in favour of bail unless it was shown that It should be denied. It was also tasked with determining the appropriate conditions that should be attached to any bail granted.

The court found that It had indeed established exceptional circumstances, which were compelling enough to warrant bail. However, the prosecution did not successfully demonstrate that the risk to the community was unacceptable. The court noted that It had strong ties to the community, a stable employment history, and a lack of prior criminal history. Additionally, It had expressed a willingness to comply with stringent bail conditions. The court concluded that these factors outweighed the seriousness of the charge and granted bail with specified conditions to ensure It's attendance at court and to mitigate any potential risk to the community.

The final orders of the court included specific conditions for It's release on bail, such as residing at a specified address, reporting regularly to a bail supervisor, and refraining from contact with certain individuals. It was also required to surrender any travel documents and to adhere to a curfew. These conditions were deemed necessary to balance It's right to liberty with the need to protect the community and ensure It's appearance at future court hearings.

Orders