Re MM (No 2) - [2024] VSC 325

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

---

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

---

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.

---

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…

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 MM (No 2)

Details

AGLC: Re MM (No 2) [2024] VSC 325
Case: [2024] VSC 325
Decision Date: 1 May 2024

CaseChat Overview and Summary

The applicants, MM and his associates, made an application to the court for the revocation of their bail under the Bail Act 1977. The respondents were the Commonwealth Director of Public Prosecutions and the Commissioner of Police. The applicants had been charged with conspiracy to import commercial quantities of a prohibited drug. The primary legal issue the court had to decide was whether the applicants had breached the conditions of their bail. The applicants argued that they had not breached the conditions of their bail, which included residing at a specified address and reporting to a police station twice daily. The court considered the evidence presented by the respondents, including intercepted communications that suggested the applicants were actively involved in their criminal enterprise, and found that the applicants had indeed breached the conditions of their bail. The court held that the risk of the applicants failing to surrender into custody outweighed the public interest in maintaining their bail. The court revoked the applicants' bail, finding that it was necessary in all the circumstances to ensure that the applicants appeared for their trial.

The court applied the test set out in the Bail Act 1977, which requires the court to consider whether the accused has breached the conditions of their bail, and whether the breach is serious enough to warrant revocation of bail. The court found that the applicants had breached the conditions of their bail by failing to reside at the specified address and by failing to report to the police station as required. The court also found that the breach was serious enough to warrant revocation of bail, as the intercepted communications suggested that the applicants were actively involved in their criminal enterprise and posed a risk to the community. The court held that the risk of the applicants failing to surrender into custody outweighed the public interest in maintaining their bail. The court revoked the applicants' bail, finding that it was necessary in all the circumstances to ensure that the applicants appeared for their trial. The court noted that the applicants had a right to a fair trial and that the revocation of bail was necessary to protect the integrity of the criminal justice system.

The final orders of the court were that the applicants' bail be revoked and that they be remanded in custody until their trial. The court also ordered that the applicants be brought before the court as soon as practicable to answer the charges against them. The court noted that the applicants had a right to a fair trial and that the revocation of bail was necessary to ensure that they appeared for their trial. The court held that the risk of the applicants failing to surrender into custody outweighed the public interest in maintaining their bail. The court emphasised the importance of the applicants' compliance with the conditions of their bail and the need to protect the community from the risk posed by the applicants. The court ordered that the applicants be brought before the court as soon as practicable to answer the charges against them.

Orders