Re Lee - [2016] VSC 343

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0068

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by Andrew William LEE

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2016
DATE OF JUDGMENT:	20 June 2016
CASE MAY BE CITED AS:	Re Lee
MEDIUM NEUTRAL CITATION:	[2016] VSC 343

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CRIMINAL LAW – Application for bail – Bail Act 1977 – Murder charge – Exceptional circumstances – Strength of Crown case – Good character – No prior convictions – Family support – Delay – No unacceptable risk – Surety – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Gumbleton	Garde Wilson Lawyers
For the Respondent	Mr P Rose QC	Office of Public Prosecutions

HER HONOUR:

Introduction

The applicant, Andrew William Lee, has been charged with the murder of Patrick Cronin at Diamond Creek on 16 April 2016. He was held in custody from 20 April 2016, the day after he surrendered himself to police, until 16 June 2016, when he was granted bail subject to a number of special conditions and the provision of surety by his parents in the amount of $350,000.

In granting bail, the Court was required to be satisfied that exceptional circumstances existed to justify the grant of bail and to then consider whether, notwithstanding the existence of exceptional circumstances, there was an unacceptable risk that if released on bail the applicant would do any one or more of the things referred to in s 4(2)(d) of the Bail Act 1977, including interfere with witnesses or otherwise obstruct the course of justice.

These are my reasons for granting bail.

Exceptional circumstances

By reason of the offence with which the applicant is charged, s 13(2) of the Bail Act required the Court to refuse bail unless satisfied that exceptional circumstances existed to justify the grant of bail.

The Crown submitted that the requirement to make out exceptional circumstances had not been satisfied in this case.

I found that exceptional circumstances had been made out.

It has been said that in order to establish exceptional circumstances, the applicant for bail has to establish circumstances ‘exceptional to the ordinary circumstances that would otherwise entitle the applicant to bail’[1] or that ‘take the matter so far beyond the normal situation that they can be regarded as exceptional’.[2] However, it is now well established that exceptional circumstances may exist as a result of the interaction of a variety of factors which individually might not be regarded as exceptional. What is ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional.[3]
[1]In the matter of a bail application by Muhaidat [2004] VSC 17, [13].
[2]In the matter of a bail application by Mantase (unreported, 21 September 2000).
[3]DPP v Cozzi (2005) 12 VR 211; Re: The Matter of Application for Bail by John Denis Moloney (unreported, 31…

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 Lee

Details

AGLC: Re Lee [2016] VSC 343
Case: [2016] VSC 343
Decision Date: 20 June 2016

CaseChat Overview and Summary

In the matter of Re Lee, the applicant faced a serious criminal charge of murder under the Bail Act 1977. The case came before the court with Lee seeking bail pending the outcome of the criminal proceedings against him. The central dispute revolved around whether the exceptional circumstances required to grant bail were present, considering the gravity of the charge.

The court was tasked with determining if the applicant's case met the threshold for exceptional circumstances as outlined in the Bail Act 1977. Key factors considered included the strength of the Crown's case, the applicant's character, the presence of prior convictions, the support from family, and the potential risk to the community if bail were granted. Additionally, the court needed to weigh the applicant's right to liberty against the need to ensure public safety and the likelihood of the applicant attending court.

The court found that the exceptional circumstances were indeed present. It assessed the strength of the Crown's case and determined it was not overwhelming, indicating that there was a reasonable prospect of acquittal. The court also noted Lee's good character, with no prior convictions, and the strong support from his family, which contributed to the likelihood of him complying with bail conditions. Importantly, the court concluded that granting bail would not pose an unacceptable risk to the community. Consequently, the court was satisfied that adequate surety arrangements could be made, leading to the granting of bail. The court's decision was based on a careful balancing of the applicant's rights and the public interest, ultimately finding that bail was appropriate in this case.

Orders