Re MD - [2021] VSC 872

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0305

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by MD

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2021
DATE OF JUDGMENT:	22 November 2021
DATE OF REVISED REASONS:	6 January 2022
CASE MAY BE CITED AS:	Re MD
MEDIUM NEUTRAL CITATION:	[2021] VSC 872

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CRIMINAL LAW — Bail — Application for bail — Charges of contravening a family violence intervention order, unlawful assault, criminal damage, reckless conduct endangering serious injury, committing indictable offence while on bail, possessing weapons and driving offending — ‘Compelling reasons’ test — Contested hearing already commenced — Strength of the prosecution case — Mental health of applicant — Onerous custodial conductions due to COVID-19 pandemic — Possibility applicant would spend more time remanded in custody than term of imprisonment imposed upon a finding of guilt — Compelling reasons established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Stephanie Joosten	Slink & Keating
For the Respondent	Mr Alexander Austin	Victoria Police

HIS HONOUR:

Introduction

By application dated 3 November 2021, MD (‘the applicant’) seeks bail in this Court in relation to two separate matters, the first where the informant is Constable Chelsea Foley (‘the Foley matter’) and the second where the informant is Senior Constable Dean Mason (‘the Mason matter’).

On 4 August 2019 the applicant was arrested and charged with the following four offences by Constable Chelsea Foley:

(a) drive whilst disqualified;[1]
[1]Contrary to s 30(1) of the Road Safety Act 1986 (Vic).

(b) drive an unregistered vehicle;[2]

(c) possess a controlled weapon;[3] and

(d) parking in a disabled area without a permit.[4]

[2]Contrary to s 7(1)(a) of the Road Safety Act 1986 (Vic).

[3]Contrary to s 6(1) of the Control of Weapons Act 1990 (Vic).

[4]Contrary to r 203(1) of the Road Safety Road Rules 2009 (Vic).

On 20 April 2021, the applicant was arrested and charged by Senior Constable Sean Mason and remanded for the following 21 offences alleged to have occurred between 16 and 20 April 2021:

(a) contravene a family violence intervention order (‘FVIO’) (9 counts);[5]
[5]Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).

(b) unlawful assault (6 counts);[6]
[6]Contrary to s 23 of the Summary Offences Act 1966 (Vic).

(c) commit indictable offence whilst on bail;[7]
[7]Contrary to s 30B of the Bail Act 1977 (Vic).

(d) criminal damage;[8]
[8]Contrary to s 197(1) of the Crimes Act 1958 (Vic).

(e) unlawful assault by kicking;[9]

(f) possess prohibited weapon;[10] and

(g) recklessly engage in conduct endangering serious injury.[11]

[9]Contrary to s 23 of the Summary Offences Act 1966 (Vic).

[10]Contrary to s 5AA of the Control of Weapons Act 1990 (Vic).

[11]Contrary to s 23 of the Crimes Act 1958 (Vic).

Procedural history

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 MD

Details

AGLC: Re MD [2021] VSC 872
Case: [2021] VSC 872
Decision Date: 22 November 2021

CaseChat Overview and Summary

The parties involved in this case were the applicant, who was facing a series of serious charges, and the respondent, the state of Victoria. The nature of the dispute was an application for bail, made by the applicant while he was already facing trial for charges that included contravening a family violence intervention order, unlawful assault, criminal damage, reckless conduct endangering serious injury, committing an indictable offence while on bail, possessing weapons, and driving offending. This case was heard in the Supreme Court of Victoria.

The legal issues the court needed to address centred around the application of the 'compelling reasons' test for granting bail, as outlined in the Bail Act 1977 (Vic). Given that a contested hearing had already commenced, the court needed to consider the strength of the prosecution case, the mental health of the applicant, and the impact of the COVID-19 pandemic on custodial conditions. The court also had to determine whether the applicant posed an unacceptable risk to the community and whether compelling reasons existed for granting bail despite the seriousness of the charges.

In reaching its decision, the court acknowledged the severity of the charges but determined that compelling reasons for granting bail had been established. The applicant's mental health and the onerous conditions of custody due to the pandemic were considered significant factors. The court found that there was no unacceptable risk to the community and that the applicant would likely spend more time remanded in custody than the term of imprisonment that would be imposed if found guilty. Therefore, the court granted bail with specific conditions.

The final orders included that the applicant was to be released on bail subject to conditions such as residence restrictions, curfews, and regular check-ins with bail supervisors. These conditions were designed to mitigate any risk to the community while also taking into account the applicant's circumstances and the current health environment.

Orders