Re Malhotra - [2020] VSC 577

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0088

IN THE MATTER of the Bail Act 1977 (Vic)

-and

IN THE MATTER of an application for bail by PIYUSH MALHOTRA

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2020
DATE OF RULING:	13 May 2020
CASE MAY BE CITED AS:	Re Malhotra
MEDIUM NEUTRAL CITATION:	[2020] VSC 577

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CRIMINAL LAW —Application for bail — Charges of rape, aggravated burglary and recklessly causing injury — Attack on rider in applicant’s taxi — Whether compelling reason established — Discussion of meaning of compelling reason — Whether unacceptable risk if released on bail — No prior criminal history — Delay — COVID-19 pandemic — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4C, 4D, and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Page	Emma Turnbull Lawyers
For the Respondent	Mr B Sonnet	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Piyush Malhotra (the ‘applicant’). He faces charges of rape, aggravated burglary and recklessly causing injury arising from events that are alleged to have occurred on 21 September 2019. He was charged with those offences and remanded in custody on 23 September 2019.

As the applicant is accused of committing Schedule 2 offences under the Bail Act 1977 (Vic) (the ‘Act’), namely, rape and aggravated burglary,[1] it is not a matter of contention between the parties that I must refuse bail to the applicant unless I can be satisfied by him that a compelling reason exists that justifies the grant of bail.[2]
[1]Bail Act 1977 (Vic) sch 2 items 9 and 22(b) (‘Bail Act’).
[2]Ibid ss 4AA(3), 4C(1A) and 4C(2).

Procedural history

The applicant has been refused bail in the Melbourne Magistrates' Court on three previous occasions. On 24 September 2019, he was refused bail on the basis that he had not demonstrated a compelling reason and was considered an unacceptable risk of failing to surrender into custody in accordance with the conditions of bail.

His application was again refused on 10 January 2020, having failed to establish new facts and circumstances. Finally, on 27 April 2020, he was refused in the Magistrates' Court on the grounds that he had not shown a compelling reason justifying a grant of bail and was an unacceptable risk of failing to surrender into custody.

This matter is next listed for a contested committal at the Melbourne Magistrates' Court on 28 October 2020, after having been adjourned from its previous listing on 8 April 2020. That adjournment occurred as a result of the Court's response to the COVID-19 pandemic. I am told that the respondent seeks to obtain a further adjournment of the committal on the basis that the October date is unsuitable for the informant and another witness. It is not yet known when that new date will be.

The alleged offending

On 21 September 2019, the female…

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 Malhotra

Details

AGLC: Re Malhotra [2020] VSC 577
Case: [2020] VSC 577
Decision Date: 13 May 2020

CaseChat Overview and Summary

The applicant, Malhotra, applied for bail in the County Court of Victoria, facing charges of rape, aggravated burglary and recklessly causing injury arising from an attack on a rider in his taxi. The application hinged on whether a compelling reason had been established for his release on bail. The court was tasked with interpreting the meaning of "compelling reason" in the context of the Bail Act 1977 (Vic) and assessing whether there was an unacceptable risk of reoffending or failing to appear if he were released on bail.

The court thoroughly examined the factors relevant to the application of the Bail Act, considering Malhotra's no prior criminal history, the nature and severity of the alleged offences, and the circumstances surrounding the alleged attack. The court also weighed the delay in the proceedings due to the COVID-19 pandemic. The court concluded that Malhotra had established a compelling reason for bail due to the pandemic-induced delay, and that there was no unacceptable risk if he were released on bail. The court set conditions for his release, including a requirement to reside at a specified address and to observe a curfew.

Malhotra's application for bail was granted with the aforementioned conditions. The court's decision emphasised the importance of balancing the right to liberty with the need to protect the community and ensure that justice is served. The court considered the specific circumstances of the case and the provisions of the Bail Act in reaching its decision. The conditions imposed aimed to mitigate any potential risks associated with Malhotra's release while also acknowledging the impact of the COVID-19 pandemic on the proceedings.

Orders