Re MM (No 2)
[2024] VSC 325
•1 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0325
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| – and – | |
| IN THE MATTER of an Application for Revocation of Bail by the Director of Public Prosecutions | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2024 |
DATE OF RULING: | 1 May 2024 |
DATE OF REASONS: | 17 June 2024 |
CASE MAY BE CITED AS: | Re MM (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 325 |
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CRIMINAL LAW — Application for revocation of bail — Failure to comply with conditions of bail — Risk of failing to surrender into custody — Test to be applied — Bail revoked – Bail Act 1977, ss 1B, 3AAA, 18AE.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | P Pathmaraj | Office of Public Prosecutions |
| For the Respondent | J McGarvie | Stary Norton Halphen |
HIS HONOUR:
Introduction
By application dated 4 March 2024, the Director of Public Prosecutions [‘DPP’] applies for the bail of MM [‘the respondent’] to be revoked.
The grounds for the application are twofold, namely:
(a) her failure to comply with the conditions of her grant of bail; and
(b) the risk that she will fail to surrender into custody in accordance with her conditions of bail.
This court granted bail to the respondent on 25 January 2024. The facts and circumstances leading to the grant of bail are set out in detail in the written reasons of this court published on 12 February 2024.[1] The conditions which attached to the grant of bail are also fully set out in the published reasons, and mirror the orders of the court made on 25 January 2024.
[1]Re MM [2024] VSC 23 (Champion J).
In the present circumstances, it is unnecessary to reiterate the matters set out in the published reasons.
The revocation application
The application to revoke bail is supported by an affidavit from the Office of Public Prosecutions, dated 4 March 2024, to which are attached a series of exhibits. These exhibits include copies of statements of Detective Senior Constable Rodney Hayne, each of which sets out historical factual matters relating to breaches of bail by the respondent, along with more recent alleged breaches precipitating this application.
The applicable law
On 25 March 2024, changes to the Bail Act 1977 (Vic) [‘the Act’] came into operation. I note that these changes did not make any substantive alterations to the sections governing applications to revoke bail.
Per section 18AE, the informant or DPP may apply to revoke bail granted to a person, with the application to be made to the court to which the person is required to surrender under the bail undertaking. Section 18AF provides that on such an application, the court may either revoke bail or dismiss the application.
The Act does not set out the test to be applied when deciding whether to revoke bail. In this regard, in Re Gloury‑Hyde (No 2), Justice Priest stated:[2]
Section 18AF provides that on an application under s 18AE, the court may either revoke bail or dismiss the application, but the Act otherwise gives no guidance as to how the discretionary powers in the section are to be exercised. That said, the Court must, of course, exercise the powers reserved to it under s 18AF by reference to the guiding principles in s 1B of the Act.
[2]Re Gloury-Hyde (No 2) [2018] VSC 520, [13] (Priest JA).
Section 1B relevantly provides:
(1) The Parliament recognises the importance of—
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
It is not necessary for the court to consider the surrounding circumstances contained in section 3AAA of the Act. Nor is the court obliged to consider the compelling reason test, the exceptional circumstances test, or the unacceptable risk test. Nevertheless, these sections may be taken into account if the court considers them relevant.[3] The discretion granted to the court is broad, and requires only a consideration of whether or not it is appropriate to revoke bail in light of the guiding principles of the Act.[4]
[3]Re Hammoud [2022] VSC 613, [62] (Tinney J).
[4]Ibid [63].
For the purposes of this application, this court makes particular note of the comments made by Justice Tinney in Re Hammoud, where his Honour observed:[5]
Evidence showing that the respondent had repeatedly and deliberately breached conditions of bail over a substantial period of time would be an important matter for the court to consider when contemplating whether bail should be revoked.
[5]Ibid.
Submissions for the applicant
The applicant has filed an 11-page written submission, in essence arguing that since being granted bail the respondent has repeatedly failed to abide by her curfew and reporting conditions, and failed to attend hearings in the County Court of Victoria.
The applicant has set out in extensive detail the procedural history of the matters concerning the respondent, the events since the respondent’s most recent release on bail, the extent of her alleged breaches of bail conditions, and the relevant legal principles to be applied.
In particular, the applicant cites a number of observations and warnings that were given to the respondent by this court at the time bail was granted. Also cited are comments that were made by me on 22 February 2024, when the respondent appeared before this court for a bail monitoring hearing, where it is argued that even by that stage she had demonstrated poor compliance with her bail conditions, and where she was advised that the applicant would be applying for a revocation of her bail.
The applicant argues that even despite the warnings that were given, and in the clear knowledge that the application was going to be made, the respondent has further failed to adhere to various bail conditions concerning her curfew and her obligation to report to police.
In summary terms, the applicant argues the respondent has consistently breached her bail conditions, such that it is clear she has a lack of desire and willingness to comply with the orders of the court. Furthermore, it is alleged that the respondent has provided false explanations for ongoing bail breaches, as pointed out in the material provided by the informant.
Relevantly, it is all also pointed out that on 9 April 2024, the respondent failed to appear at a final directions hearing in the County Court, relating to her forthcoming criminal trial.
In all the circumstances, it is submitted that the conditions that were designed to reduce the risk of the respondent failing to appear on bail are unable to achieve that aim due to the respondent’s demonstrated inability and unwillingness to abide by court orders. The applicant further argues that “even after she was put on plain notice by the informant and the court about the risks associated to her ongoing lack of compliance, the respondent has continued to flout her obligations”.
It is submitted that no further conditions of bail can reduce the respondent’s risk of failing to appear to an acceptable level. Accordingly, the applicant contends it is appropriate for the court to revoke the grant of bail made on 25 January 2024.
Submissions for the respondent
The respondent relies on a three-page written outline of argument, and oral submissions made on this application.
The respondent also relies on a letter from the Australian Community Support Organisation [‘ACSO’], dated 30 April 2024, which states that further voluntary support is available to her. It also indicates that ACSO has been providing fulsome support for the previous three months.
Whilst acknowledging that the respondent has not fully complied with her bail conditions, it is submitted that the application should be dismissed. The respondent points to the matters outlined in the written submissions and emphasises that she continues to receive support from a number of agencies and her mother. She proposes to continue to residing with her mother.
Further, the respondent concedes there was a directions hearing on 19 February 2024 which the respondent did not attend, and another in early April that the respondent was unable to attend. In relation to her April absence, there is evidence she was in hospital at the time, having been allegedly assaulted the day before. There is no dispute about this evidence.
Analysis and conclusions
In granting the respondent bail on 25 January 2024, this court made it clear that the application had been finely balanced. I remarked that in assessing all of the relevant circumstances, including her persistent failure to adhere to the conditions of bail put in place by the County Court, the circumstances painted a sorry picture of the respondent’s attitude towards her previous grants of bail. That observation can be broadened to include the grant of bail made by this court.
There is no satisfactory explanation as to why the respondent did not appear at the hearing in February 2024. It appears to be yet another example of her disregard of court orders. Notwithstanding the apparently valid reason why she was not at the hearing in April, this does not end the matter. There have been a litany of other, regular failures to abide by her bail conditions — which have continued since her discharge from hospital. In this regard, the respondent has become a repeat offender.
In January of this year, I accepted that, despite all of the failures in the recalcitrant attitude of the respondent, there were a series of supports that existed. I formed the view that, if conscientiously followed, these supports could ensure the respondent tended to her bail obligations. In essence, I was satisfied that the degree of risk posed by her could be satisfactorily managed with the imposition of strict bail conditions such that it was, at that stage, an acceptable risk.
Regrettably, in my opinion, despite the support offered and the repeated opportunities given by the court system, the respondent has to a significant degree failed to conform to the obligations and conditions imposed on her, as demonstrated by the material placed before the court. She has failed to take the matter of her bail seriously. At the time, I was assured she would receive assistance to adhere to her obligations, and even those assurances seem to have failed to meet expectations.
I have also taken into account that a trial date for her matters has now been set, and she will face trial on 20 August 2024. This does not now amount to a significant delay. In reaching my conclusion, I have considered the guiding principles contained in section 1B of the Act.
In summary, the respondent’s arguments have failed to impress the court. The applicant, on the other hand, has satisfied me that the respondent is unable to conform satisfactorily with her bail obligations and as such there is now an unacceptable risk that she will continue to fail to abide with her bail conditions. Primarily, I am satisfied that there is an unacceptable risk the respondent will not appear at relevant court hearings, which of course is fundamental to any grant of bail. The respondent has failed to appear multiple times without providing any reasonable excuse. She has run out of luck, and the patience of the court is exhausted.
I note in passing that much precious time and resources have been spent giving the respondent opportunities to comply with her bail conditions. She has failed to take advantage of the opportunities that have been afforded to her by successive courts.
In all the circumstances, I am satisfied it is appropriate to revoke the respondent’s bail and remand her in custody.
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