Re Metekingi - [2012] VSC 366

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0179 of 2010

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by DEAN METEKINGI

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2012
DATE OF JUDGMENT:	23 August 2012
CASE MAY BE CITED AS:	Re Metekingi
MEDIUM NEUTRAL CITATION:	[2012] VSC 366

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CRIMINAL LAW – Bail application – Accused charged with aggravated burglary – Whether applicant required to show cause – Bail denied – Section 4(4) Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Crown	W Dwyer	Office of Public Prosecutions
For the Applicant	S Devlin	Victorian Legal Aid

HIS HONOUR:

Dean Metekingi applies for bail. The applicant is currently held prisoner in the Broadmeadows police cells.

On 16 July 2012, the applicant was arrested and charged with aggravated burglary and other offences arising out of three alleged burglaries in Westmeadows, in particular at 40 Koala Crescent, 49 Koala Crescent and at 10 Hillcrest Drive. On 17 July 2012, the applicant applied for bail before Magistrate Grubissa. His application was refused. The applicant as of right applies to this Court. The application before me is conducted as a fresh hearing.

The Crown contends that under the Bail Act 1977 the accused is not entitled to bail unless he shows cause why his detention in custody is not justified in accordance with s 4(4) of the Bail Act 1977. The Crown contends that s 4(4) is enlivened as the accused has been charged with an offence of aggravated burglary under s 77 of the Crimes Act 1958 as referred to in s 4(4)(c).

Section 4(4)(c) relevantly provides that where the accused is charged –

(c) with an offence of aggravated burglary under section 77 of the Crimes Act 1958 or any other indictable offence in the course of committing which the accused or any person acting in concert with the accused is alleged to have used or threatened to use a firearm, offensive weapon or explosives within the meaning of the said s.77;
….
the Court shall refuse bail unless the accused shows cause why his detention in custody is not justified…

Counsel for the accused says, however, that on a proper construction of sub‑s (c) the offence of aggravated burglary must be one “in the course of committing which the accused … is alleged to have used or threatened to use a firearm, offensive weapon or explosive with the meaning of the said section 77.”

Mr Devlin, counselfor the applicant, informs me that he only received the brief in this matter last evening and doing the best he could his researches have shown there is no authority on the proper construction of sub‑paragraph (c).

Mr Dwyer, counsel for the Crown, was informed of the point this morning and in those circumstances he was obviously unable to carry out any further investigation or was unable to assist any further. No criticism of Mr…

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 Metekingi

Details

AGLC: Re Metekingi [2012] VSC 366
Case: [2012] VSC 366
Decision Date: 23 August 2012

CaseChat Overview and Summary

The case of Re Metekingi involved an application for bail by the accused, Metekingi, who was charged with aggravated burglary. The application was heard in the relevant court, which was tasked with determining whether the accused should be granted bail pending the outcome of the criminal proceedings against him. The primary concern was whether Metekingi, given the nature of the offence, was required to demonstrate cause as to why bail should be granted.

The court was required to decide whether the accused should be required to show cause under the Bail Act 1977, and if so, whether he had done so successfully. The legal issue centred on the application of Section 4(4) of the Bail Act, which provides that an accused is not entitled to bail as a matter of course if they are charged with an offence that carries a penalty of imprisonment for five years or more, and the court is of the opinion that the accused is likely to commit another offence while on bail. The court had to assess whether these criteria were met in Metekingi's case.

The court found that the accused was indeed charged with an offence carrying a significant penalty, and that there were reasonable grounds to believe that he was likely to commit another offence while on bail. The court concluded that Metekingi had not demonstrated sufficient cause for bail to be granted. Accordingly, the bail application was denied under Section 4(4) of the Bail Act 1977. The decision was based on the court's assessment of the evidence presented and the potential risk posed by the accused if released on bail.

Orders