Re LN - [2022] VSC 11

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0371

IN THE MATTER of the Bail Act 1977 (Vic)

IN THE MATTER of an application for bail by LN

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JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2022
DATE OF JUDGMENT:	24 January 2022
CASE MAY BE CITED AS:	Re LN
MEDIUM NEUTRAL CITATION:	[2022] VSC 11

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CRIMINAL LAW – Application for bail – Charges of rape, make threats to kill, attempt to commit an indictable offence and assault – Whether compelling reasons established – Whether unacceptable risk – Seriousness of offending – Compelling reason not established – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4C, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr T Alexander with Mr C Brydon	FE Lawyers
For the Respondent	Ms D Guesdon	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

By application filed 15 December 2021, LN (‘the applicant’) applies for bail in this Court in relation to 12 charges concerning a single complainant (‘the complainant’ or ‘VA’) who was the applicant’s wife at the time of the alleged offending. The alleged offending spans the period from 1 March 2017 to 13 July 2021 and occurred within the family home. The charges involve eight counts of rape, one count of make threats to kill, one count of attempt to commit an indictable offence, namely rape, and two counts of common law assault.

The applicant has been on remand since he was arrested on 23 November 2021. He made an application for bail in the Melbourne Magistrates’ Court on this date, which was refused on the basis that he failed to establish a compelling reason justifying the grant of bail.

The alleged offending

Background

What follows is a summary of the allegations made by the prosecution. The principal evidence in support of the charges comes from the complainant. The applicant notes that the allegations are untested and, having regard to the complainant’s statement, he says there are inconsistences and improbabilities in her account. In addition to her statement, the complainant provided to police audio-visual recordings of three of the alleged incidents, including a video recording of the last occasion when she says she was raped by the applicant.

The prosecution relies on the recordings, and a written translation of what was said, as providing strong corroboration of the complainant’s account of the three incidents and says that it is inconsistent with the applicant’s account.

At the time of the hearing, the applicant’s counsel had not had the opportunity to view the footage. The footage had been provided to the Court and viewed in advance of the hearing. No objection was taken to that course. However, I took the view that given the potential importance of the footage it was essential that counsel be given an opportunity to view it and put any submissions as thought appropriate. The application was adjourned to allow for that to occur. In…

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 LN

Details

AGLC: Re LN [2022] VSC 11
Case: [2022] VSC 11
Decision Date: 24 January 2022

CaseChat Overview and Summary

The parties involved in the case were the applicant, LN, and the respondent, the Crown. LN was charged with multiple serious offences, including rape, making threats to kill, attempting to commit an indictable offence, and assault. The matter was heard in the Magistrates' Court of Victoria, where the presiding magistrate had to decide whether to grant bail to LN. The central legal issue before the court was whether LN had established compelling reasons for bail and whether there was an unacceptable risk of him reoffending if released on bail. The court needed to consider the seriousness of the charges and the risk posed to the community by LN's potential release.

In evaluating the application, the magistrate examined the evidence and arguments presented by both parties. The court highlighted the gravity of the charges against LN, including the violent nature of the alleged offences and the potential harm to the victims. The magistrate also considered the risk of reoffending, the history of compliance with bail conditions, and the likelihood of LN appearing in court if granted bail. Ultimately, the court concluded that LN had not established compelling reasons for bail, and there was an unacceptable risk that he would reoffend if released. Consequently, the application for bail was refused.

The magistrate's decision was based on a comprehensive assessment of the evidence and legal principles under the Bail Act 1977. The court found that the serious nature of the charges and the potential risk to the community outweighed any compelling reasons LN might have presented. The court also noted the lack of evidence supporting the argument that LN would not reoffend if granted bail. As a result, the application for bail was denied, and LN remained in custody pending the resolution of the charges against him.

The final orders of the court were that the application for bail was refused, and LN was to remain in custody until further orders. The magistrate's decision was grounded in the statutory provisions of the Bail Act 1977 and a careful consideration of the circumstances and evidence presented in the case.

Orders