Re Neskovski - [2019] VSC 447

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0124

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by JAMIE NESKOVSKI

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2019
DATE OF JUDGMENT:	3 July 2019
CASE MAY BE CITED AS:	Re Neskovski
MEDIUM NEUTRAL CITATION:	[2019] VSC 447

---

CRIMINAL LAW – Bail – Charges of dangerous driving causing death, failing to immediately render assistance after a motor vehicle accident, failing to stop after a motor vehicle accident, careless driving and culpable driving causing death – Requirement to show a compelling reason exists that justifies grant of bail – Whether a compelling reason established – Compelling reason established – No unacceptable risk – Bail granted – Bail Act 1977, ss 4C and 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G J E Steward	Grigor Lawyers
For the Respondent	Ms J Piggot	Office of Public Prosecutions

HIS HONOUR:

At approximately 3:04 am on 22 December 2018, a van collided with a pedestrian in Yarra Street, South Geelong. The pedestrian died at the scene.

The vehicle involved in the collision was registered to the applicant’s father’s cleaning business. At approximately 7:10 pm on 22 December, the applicant attended the Geelong police station with his father. An interview was conducted. The applicant was subsequently arrested and charged with dangerous driving causing death and failing to immediately render assistance after a motor vehicle accident.

The applicant has been in custody since his arrest. On 12 June 2019, three further charges were filed against him in relation to the collision: failing to stop after a motor vehicle accident, careless driving and culpable driving causing death.

On 12 June 2019, the applicant filed an application for bail in this Court. The applicant had previously been refused bail, in the Magistrates’ Court, on 24 December 2018 and 27 February 2019.

Having been accused of a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — that is, dangerous driving causing death (and subsequently, culpable driving causing death)[1] — pursuant to s 4C of the Act, the Court must refuse bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.
[1]See items 22(f) and (g) of Schedule 2 of the Act.

The Crown case

The Crown case is that the van that struck the deceased was driven by the applicant. It is not necessary for present purposes to describe the alleged circumstances of the collision in any detail. The case against the applicant is that the evidence relating to the collision is ‘consistent with fatigue/drowsiness contributing to the collision’.

The Crown case relies upon a compilation of records of the applicant’s rostered work hours, the analysis of the usage of his mobile phone, witness statements and CCTV footage, so as to show that at the time of the collision the applicant was very likely…

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 Neskovski

Details

AGLC: Re Neskovski [2019] VSC 447
Case: [2019] VSC 447
Decision Date: 3 July 2019

CaseChat Overview and Summary

In the case of Re Neskovski, the respondent faced multiple serious charges, including dangerous driving causing death, failing to immediately render assistance after a motor vehicle accident, failing to stop after a motor vehicle accident, careless driving, and culpable driving causing death. The application for bail was brought before the Court, which had to determine whether there was a compelling reason to justify the granting of bail. The court needed to assess whether the respondent had established a compelling reason and whether there was an unacceptable risk to the community if bail were granted.

The court considered the principles set out in the Bail Act 1977, particularly sections 4C and 4E, which require the court to establish a compelling reason that justifies the grant of bail. The court examined the evidence presented by both parties and the severity of the charges against the respondent. It found that the respondent had demonstrated a compelling reason to be granted bail, which included the potential for a significant delay in the trial process and the respondent's ties to the community, including employment and family responsibilities. The court also concluded that there was no unacceptable risk to the community if bail were granted, as the respondent had complied with previous bail conditions and there was no likelihood of reoffending.

Based on the compelling reason established and the absence of any unacceptable risk, the court decided to grant bail to the respondent. The court ordered the respondent to adhere to specific bail conditions, including a curfew, regular check-ins with a bail supervisor, and restrictions on travel. The court emphasised the importance of these conditions in ensuring that the respondent would appear for trial and not pose a risk to the community. The decision highlighted the court's duty to balance the rights of the respondent with the need to protect public safety and ensure that justice is served.

Orders