Re O'Shea - [2019] VSC 791

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0236

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by BRIAN O’SHEA

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2019
DATE OF JUDGMENT:	2 December 2019
CASE MAY BE CITED AS:	Re O’Shea
MEDIUM NEUTRAL CITATION:	[2019] VSC 791

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CRIMINAL LAW – Bail – Applicant charged with Schedule 1 offence – Requirement to show exceptional circumstances exist that justify grant of bail – Whether exceptional circumstances shown – Whether an unacceptable risk – Parity – Exceptional circumstances established – No unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4A, 4AA, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Stary Norton Halphen Lawyers
For the Respondent	Ms S Borg	Office of Public Prosecutions

HER HONOUR:

On 25 July 2019, Brian O’Shea (‘the applicant’) was arrested and charged with the murder of Cindy Crossthwaite (‘the deceased’). It is the prosecution case that the deceased’s estranged husband, Emil Petrov (‘the co-accused’), murdered the deceased at her Melton South residence on the morning of 20 June 2007. The prosecution alleges that the applicant was involved in the commission of the offence by means of procuring a firearm for the co-accused, knowing that it would be used to murder the deceased.

The applicant has been in custody since his arrest. The matter is next listed for a five day contested committal hearing on 18 May 2020 at the Melbourne Magistrates’ Court. Pursuant to s 13(2) of the Bail Act 1977 (Vic) (‘the Act’), only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder. As the applicant’s matter has not yet reached committal stage in the Magistrates’ Court, no previous application for bail has been made.

By notice dated 1 November 2019, the applicant seeks a grant of bail in this Court. As the applicant is charged with murder, bail must be refused unless he can satisfy the Court that exceptional circumstances exist which justify the grant of bail.[1]
[1]Bail Act 1977 sch 1, item 2 (‘Bail Act’).

The co-accused, who was arrested and charged with the murder of the deceased on 17 July 2019, was granted bail by this Court on 23 October 2019.[2]
[2]Re Petrov [2019] VSC 705.

The respondent opposes bail on the basis that the applicant has failed to demonstrate the existence of exceptional circumstances, and additionally, is an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice in any matter.

The alleged offending

By way of background, at the time of the alleged offending, the applicant was 37 years of age and owned a fencing business, ‘O’Shea Fencing’ with his brother, Laurie O’Shea. The applicant is a long-time friend of the co-accused, having met him sometime in 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 O'Shea

Details

AGLC: Re O'Shea [2019] VSC 791
Case: [2019] VSC 791
Decision Date: 2 December 2019

CaseChat Overview and Summary

The case of Re O'Shea involved the applicant, who was charged with an offence under Schedule 1 of the Bail Act 1977. The applicant sought bail, necessitating the demonstration of exceptional circumstances to justify the grant of bail. The legal issues in this case were whether exceptional circumstances had been established and whether the applicant posed an unacceptable risk to the community if released on bail.

The court considered the requirements of the Bail Act 1977 and the principles of parity, which dictate that similar cases should be treated similarly. The applicant argued that exceptional circumstances existed due to personal and social factors that warranted bail. The court examined the evidence provided, including the nature of the offence, the applicant's history, and the likelihood of reoffending. After careful consideration, the court found that the exceptional circumstances had been sufficiently demonstrated, and there was no unacceptable risk to the community if bail were granted.

Accordingly, the court exercised its discretion under the Bail Act 1977 and granted the applicant bail, subject to certain conditions. The decision balanced the rights of the applicant with the need to protect the community, ultimately concluding that the exceptional circumstances outweighed the potential risks. The court's decision was made in accordance with the statutory provisions and principles of parity.

Orders