Re MJ - [2021] VSC 592

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0226

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by MJ

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF JUDGMENT:	17 September 2021
CASE MAY BE CITED AS:	Re MJ
MEDIUM NEUTRAL CITATION:	[2021] VSC 592

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CRIMINAL LAW — Application for bail — Charge of murder — Alleged offending from 2019 — Strength of the prosecution case — Seriousness of the alleged offending — Limited criminal history — Family support — Family hardship — Employment — Onerous conditions in custody — Delay — Time between alleged offending and arrest — Electronic monitoring — Surety — Exceptional circumstances not established — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E — Cases cited: Re KE [2021] VSC 175; Re Roberts [2020] VSC 793; Roberts v The Queen [2021] VSCA 28; Re Shea [2021] VSC 207; DPP v Jason Ghiller [2000] VSC 435.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Daniel Gurvich QC with Mr Samuel Tovey	Kaczmarek Grigor Lawyers
For the Respondent	Ms Catherine Parkes	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by MJ (the ‘applicant’). He applies for bail on a charge of murdering OSD (the ‘deceased’) at [redacted] on 26 April 2019. The applicant was arrested almost two years later on 21 April 2021 and charged the following day by Detective Leading Senior Constable Nicholas Hayes. The applicant filed an application for bail in this Court on 27 August 2021. He has been in custody since his arrest, a period of 4 months and 27 days.

The matter is next listed for a three-day committal hearing at Melbourne Magistrates’ Court, commencing on 1 February 2022 though, like everything else, that may be subject to the effect of the COVID-19 pandemic.

The alleged offending

The prosecution case is that the applicant shot and killed the deceased on the evening of 26 April 2019 in [redacted]. The alleged motivation for him having done so is not entirely clear. The case against the applicant relies on CCTV footage, forensic evidence and statements made to police by an associate of the applicant, implicating the applicant in the murder by relating admissions the applicant is alleged to have made about his involvement.

Circumstances

On 26 April 2019 at 6:39 pm, the deceased arrived with his partner at their apartment located on [redacted]. He left alone shortly after and was last seen by the CCTV at 6:59 pm crossing from the southern to the northern side of [redacted] on foot, in the direction of [redacted] in the vicinity of [redacted].

A number of witnesses report hearing gunshots around 7:40 pm.

At 7:45 pm, a jogger found the deceased’s body on the western side of [redacted]. The jogger called 000. Paramedics attended the scene and pronounced the…

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 MJ

Details

AGLC: Re MJ [2021] VSC 592
Case: [2021] VSC 592
Decision Date: 17 September 2021

CaseChat Overview and Summary

The applicant, MJ, applied for bail in the County Court of Victoria, facing a charge of murder allegedly committed in 2019. The application was opposed by the prosecution. The central legal issues before the court were whether the strength of the prosecution case, the seriousness of the alleged offence, MJ's limited criminal history, family support and hardship, employment status, the conditions of custody, the delay between the alleged offence and arrest, electronic monitoring, and surety considerations warranted bail. The court had to weigh these factors against the public interest in ensuring that MJ would attend any future court proceedings and the risk of interfering with witnesses or the course of justice.

The court assessed the strength of the prosecution case, finding that there was substantial evidence pointing to MJ's involvement in the alleged murder. This, combined with the seriousness of the offence, made it challenging to grant bail. However, the court considered MJ's limited criminal history, family support, and the potential family hardship if bail was denied. Despite employment and the possibility of electronic monitoring, the court was not persuaded that these factors outweighed the seriousness of the charge and the risk of reoffending. The delay between the alleged offence and arrest was also noted, but not deemed significant enough to warrant bail. Ultimately, the court found that exceptional circumstances had not been established, and bail was refused under the Bail Act 1977 (Vic).

In conclusion, the court determined that the risk MJ posed to the community and the potential for reoffending outweighed the considerations in favour of bail. The application was dismissed, and MJ was ordered to remain in custody until the conclusion of the criminal proceedings. The court's decision was based on a careful consideration of the relevant legal principles and the specific circumstances of the case, including the strength of the prosecution case, the seriousness of the offence, and the potential for family hardship if bail was granted.

Orders