Re Mongan (No 2) - [2019] VSC 119

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0007

IN THE MATTER of the Bail Act 1977

- and -

IN THE MATTER of an application for Bail by DANIEL MONGAN

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2019
DATE OF JUDGMENT:	1 March 2019
CASE MAY BE CITED AS:	Re Mongan (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 119

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CRIMINAL LAW – Bail – Aggravated burglary, false imprisonment, and assault charges – Whether new facts and circumstances – Requirement to show compelling reason exists that justifies grant of bail – Whether compelling reason exists – Whether unacceptable risk – Compelling reason not shown – Unacceptable risk established – Bail refused – Bail Act 1977, ss 1B, 3AA, 4AA, 4C, 4E and 18AA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms J Warren	Mr J Cain, Office of Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail for a second time in this Court, having had his application for bail on the same charges refused by me on 24 October 2018.[1]
[1]Re Mongan [2018] VSC 638.

The facts of the charges, the applicable law, the circumstances of the applicant, the submissions made by both sides, and my detailed reasons for refusing bail on that occasion, are set out in that earlier judgment. I will not repeat them here, except insofar as it is necessary to do so.

Because of the nature of some of the offences alleged to have been committed by the applicant, a provision of the Bail Act 1977 (‘the Act’) would require me to refuse bail unless satisfied that a compelling reason exists that would justify the grant of bail in this case. [2] That was also the position at the time of the previous application.
[2]Section 4C(1A).

Preliminary issue

There is a live issue in this case whether the applicant is entitled to make this second application for bail. Section 18 of the Act permits a further application for bail by a person who has been refused bail. However, section 18 AA(1) imposes a limitation on that right. The sub-section relevantly provides:

(1) A court must not hear an application under section 18 unless –
(a)The applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail; or

…

Section 18AA(2) provides, on the other hand:

Nothing in this section derogates from the right of a person in custody to apply to the Supreme Court for bail.

The applicant, who appears in person in the application, relies on a number of matters which I will turn to shortly as amounting to new facts and circumstances. The respondent, for whom Ms Warren of counsel appears, disputes that new facts and circumstances have been shown, and submits that in light of section 18AA(2) of the Act, this application should not be entertained.

In that regard, Ms Warren submitted that section…

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 Mongan (No 2)

Details

AGLC: Re Mongan (No 2) [2019] VSC 119
Case: [2019] VSC 119
Decision Date: 1 March 2019

CaseChat Overview and Summary

The case of Re Mongan (No 2) involved the respondent, Mongan, who faced multiple charges including aggravated burglary, false imprisonment, and assault. The matter was heard in the Supreme Court of New South Wales. The central issue in this appeal was whether the respondent had demonstrated compelling reasons that would justify the granting of bail, given the gravity of the charges and the risk posed to the community.

The court examined the application of the Bail Act 1977, particularly sections 1B, 3AA, 4AA, 4C, 4E, and 18AA. It was necessary for Mongan to show that there were new facts or circumstances that had not been previously considered by the lower court, which would provide a compelling reason for bail. The court weighed the severity of the alleged crimes, the respondent's criminal history, and the potential danger to the community. It found that Mongan had not presented sufficient compelling reasons to warrant a departure from the usual approach to bail in such serious cases. Furthermore, the risk of reoffending and failing to appear in court was deemed unacceptable.

The court concluded that the compelling reason requirement was not met and that the unacceptable risk to the community was established. Therefore, the appeal was dismissed, and the decision to refuse bail was upheld. The court's ruling emphasised the importance of the stringent approach required in cases involving serious criminal charges, particularly when public safety is a significant concern.

Orders