Re Madden - [2021] VSC 817

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2021 0337

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by ANDREW MADDEN	Applicant

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 8 December 2021
DATE OF ORDERS:	8 December 2021
DATE OF JUDGMENT:	9 December 2021
CASE MAY BE CITED AS:	Re Madden
MEDIUM NEUTRAL CITATION:	[2021] VSC 817

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CRIMINAL LAW – Application for bail – Charges of intentionally causing injury, making threat to kill, unlawful assault with a weapon and using a controlled weapon – Applicant on Community Correction Order – Compelling reasons established – Unacceptable risk not demonstrated – Bail granted – Bail Act 1977 ss 1B, 3AAA, 3A, 4C, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Habib	Criminal Lawyers Geelong
For the Respondent	Mr N Watt	Legal Services Department, Victoria Police

HIS HONOUR:

Introduction

Andrew Madden (‘the applicant’) was remanded in custody following his arrest on 2 November and was refused bail in the Geelong Magistrates’ Court[1] the following day in respect of four charges brought: intentionally cause injury; make threat to kill; unlawful assault with a weapon; and use a controlled weapon.
[1]The applicant failed to show compelling reasons and was found to be an unacceptable risk of committing a further offence, endangering the safety or welfare of another person, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody. Risk was the ‘determining factor’ due to the close proximity of the applicant’s residence to the complainant and his history of bail-related offending.

The applicant applies for bail. The charges are next listed in the Geelong Magistrates’ Court on 8 March 2022 for a contest mention.

The alleged offending

What follows appears from the prosecution summary.

The applicant and Timothy Thomas are neighbours, residing in opposing units at an address in Corio. At 11.20 pm on 2 November 2021, the applicant allegedly approached Mr Thomas’ unit and banged on the window. Mr Thomas and his partner, Megan Christensen, went outside to the shared driveway area where the applicant was yelling and accusing him of using cameras to watch him.

The applicant approached and attempted to punch Mr Thomas, who then struck the applicant to the face causing him to fall to the ground. He got up and tried to strike Mr Thomas again but was hit a second time. The applicant then ran inside his unit yelling ‘you’re dead, I’m gonna fuck you up’ and Mr Thomas and Ms Christensen went back inside their unit.

A short time later, the applicant again started yelling from the driveway area, Mr Thomas, Ms Christensen and Mr Thomas’ housemate, Chris Moore, went outside and saw the applicant holding a knife in his right hand. He swung the knife twice at Mr Thomas causing him to back away and then stabbed him once to the left forearm.

Emergency services attended and…

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 Madden

Details

AGLC: Re Madden [2021] VSC 817
Case: [2021] VSC 817
Decision Date: 9 December 2021

CaseChat Overview and Summary

The case of Re Madden involved the applicant, Madden, who applied for bail following charges related to various serious criminal offences. Madden faced allegations of intentionally causing injury, making threats to kill, unlawful assault with a weapon, and using a controlled weapon. The matter was heard in the court, which had to decide whether to grant bail in light of Madden's ongoing Community Correction Order. The court was tasked with determining whether compelling reasons existed to grant bail and whether the risk of unacceptable harm to the community or witnesses was demonstrated.

The legal issues before the court were centred on whether Madden had established compelling reasons to be granted bail, and if the risk of unacceptable harm to the community or witnesses was sufficiently demonstrated to warrant denying bail. The court had to assess the seriousness of the charges, Madden's criminal history, and the likelihood of him appearing in court if released on bail. Additionally, the court considered the potential risk to the community if Madden were to be released on bail and whether this risk outweighed the compelling reasons for his release.

After considering the evidence presented and the relevant statutory provisions, the court found that Madden had indeed established compelling reasons for being granted bail. However, it was not convinced that the risk of unacceptable harm to the community or witnesses was demonstrated to the requisite standard. Consequently, the court ruled that bail should be granted. The court's decision was influenced by the specific provisions of the Bail Act 1977, including sections 1B, 3AAA, 3A, 4C, and 4E, which outline the criteria and considerations for granting bail in cases involving serious criminal charges.

The final orders of the court were that Madden be released on bail, subject to certain conditions to ensure his appearance in court and to mitigate any potential risk to the community. These conditions included restrictions on his movements, obligations to report to a police station, and a requirement to surrender his passport. The court also imposed conditions designed to protect potential witnesses and the community at large.

Orders