Re Maynard - [2022] VSC 616

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0246

IN THE MATTER of the Bail Act 1977

- and –

IN THE MATTER of an application for bail by PHILLIP MAYNARD

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2022
DATE OF JUDGMENT:	18 October 2022
CASE MAY BE CITED AS:	Re Maynard
MEDIUM NEUTRAL CITATION:	[2022] VSC 616

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CRIMINAL LAW – Bail – Thirty-seven-year-old applicant with extensive criminal history – Charged with kidnapping, armed robbery, intentionally causing injury and other offences – Alleged offending shortly after completion of sentence for similar offending – Complainant now deceased, having never been cross-examined – Complainant had criminal history – Strength of prosecution case – Whether statements of complainant likely to be admitted into evidence – Whether jury likely to act on evidence of complainant – Case not a weak one – Likely delay of 24 months before finalisation of contested charges – Accommodation, employment and surety available – Applicant’s membership of outlaw motor cycle gang increased risk of reoffending – Compelling reason not made out – Unacceptable risk in any event – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4C, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R de Vietri	Emma Turnbull Lawyers
For the Respondent	Mr D Brown	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail on a number of charges he faces, in respect of which the informant is Detective Senior Constable Tamika Butters (‘the informant’) of the Echo Taskforce. The charges are as follows:

•        Kidnapping (common law)
•        False imprisonment (common law)
•        Armed robbery
•        Intentionally causing injury
•        Unlawful assault
•        Prohibited person possessing a firearm
•Person subject to firearm prohibition order carry firearm or firearm related item (two charges)

•        Possess drug of dependence (four charges)
•        Handle stolen goods
•        Deal with property suspected of being proceeds of crime

It is agreed between the parties that the Court is required to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. This is because the applicant is accused of a Schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’).[1]
[1]Armed robbery is an offence which is contained at item 22 of Schedule 2 of the Act.

Procedural history

The alleged offending occurred on 15 May and 9 June 2022. The applicant was arrested and remanded in custody on 9 June 2022. He applied for bail in the Melbourne Magistrates’ Court on 16 September 2022. Bail was refused by the learned Magistrate. The certified extract from that hearing indicates that the ground for refusal was that there was an unacceptable risk that the applicant would commit an offence while on bail.

Three co-offenders have been charged with offences including kidnapping, false imprisonment, armed robbery and intentionally causing injury (‘ICI’). All have now been released on bail.

The applicant is next due…

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 Maynard

Details

AGLC: Re Maynard [2022] VSC 616
Case: [2022] VSC 616
Decision Date: 18 October 2022

CaseChat Overview and Summary

The case of Re Maynard involved a thirty-seven-year-old applicant with a considerable criminal history, who was charged with offences including kidnapping, armed robbery, and intentionally causing injury. The matter was before the court on an application for bail. The applicant had recently completed a sentence for similar offences and was alleged to have committed the current crimes shortly thereafter. The complainant in the case had a criminal history of their own and, tragically, had passed away before the matter could proceed to trial. Consequently, the applicant had never had the opportunity to cross-examine the complainant.

The legal issues before the court centred on whether the statements of the deceased complainant were likely to be admitted into evidence, and if a jury would be likely to act on such evidence. The court also had to consider the strength of the prosecution's case, the applicant's likelihood of reoffending, and the availability of suitable accommodation and employment to support the applicant if granted bail. The applicant argued that there was a compelling reason for bail due to the length of time before the finalisation of the contested charges, while the prosecution contended that the applicant's membership in an outlaw motorcycle gang significantly increased the risk of reoffending.

The court found that the statements of the complainant were likely to be admitted into evidence and that a jury would likely act on such evidence. It held that the prosecution's case was not weak and that there was a significant risk of reoffending due to the applicant's membership in an outlaw motorcycle gang. Despite the applicant's arguments regarding the length of time before the finalisation of the contested charges and the availability of accommodation and employment, the court concluded that the compelling reason for bail had not been made out. The court also found that the risk posed by the applicant was unacceptable in any event. Consequently, the court denied the application for bail.

Orders