Re Oldis

Case [2020] VSC 769 18 November 2020

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0280

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by JAKE OLDIS

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2020
DATE OF JUDGMENT:	18 November 2020
CASE MAY BE CITED AS:	Re Oldis
MEDIUM NEUTRAL CITATION:	[2020] VSC 769

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CRIMINAL LAW – Bail – Section 3A murder and armed robbery – Alleged drug rip off - Three co–accused in addition to applicant - Two co-accused granted bail by different judge – Prosecution cases against co-accused stronger than that against the applicant – No assertion by respondent of unacceptable risk against applicant – Parity – Hurdles confronting prosecution in respect of complicity and causation – Delay – Onerous conditions in custody due to COVID-19 – Strong family support – Availability of employment – Substantial surety – Exceptional circumstances made out – Bail granted with stringent conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L Gwynn	Theo Magazis & Associates
For the Respondent	Mr P Pickering	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction and procedural history

The applicant applies for bail on charges he faces of murder contrary to s 3A of the Crimes Act 1958 and armed robbery. The alleged offending occurred in the early hours of 15 September 2019.

The applicant was remanded in custody on these charges on 7 August 2020. This is his first application for bail. Pursuant to s 13(2) of the Bail Act 1977 (‘the Act’), only this Court, or a court committing the person for trial, may grant bail to a person accused of murder. Murder is a Schedule 1 offence under the Act, and as a result, I must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.

Three other people have been charged with the same offences as the applicant. Two of them, Denaye Whitfield (‘Whitfield’) and Tomas Cugurno-Pfabe (‘CP’), were released on bail by Taylor J on 28 September 2020[1] and 20 October 2020[2] respectively. The other co-accused, Benjamin Nagy (‘Nagy’), has made no application for bail and remains in custody.
[1]Re Whitfield [2020] VSC 632.
[2]Re Cugurno-Pfabe [2020] VSC 687 (‘Re Cugurno-Pfabe’).

The alleged offending

At the time of the alleged offending, Bradley Crawford (‘the deceased’), was residing at a caravan parked in the driveway of his mother’s home at 43 Borg Crescent, Scoresby, using the caravan to traffick drugs, including cannabis, methylamphetamine and cocaine.

Co-accused Whitfield was introduced to the deceased through a mutual associate in June 2019. Over the next three months she attended the deceased’s caravan to purchase drugs on approximately 10 occasions.

Whitfield met Nagy at a mutual friend’s home in July 2019. During a conversation between the pair in September 2019, Whitfield informed Nagy that she had been purchasing methylamphetamine from…

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 Oldis

Details

AGLC: Re Oldis [2020] VSC 769
Case: [2020] VSC 769
Decision Date: 18 November 2020

CaseChat Overview and Summary

The case before the court involved an application for bail by the applicant, who was charged with murder and armed robbery, under section 3A of the Bail Act 1977. The applicant was one of four co-accused in relation to these charges, which stemmed from an alleged drug rip-off. The prosecution's cases against the other three co-accused were deemed stronger than that against the applicant. Despite this, two of the co-accused had already been granted bail by a different judge. The respondent did not argue that there was an unacceptable risk posed by the applicant if bail were granted.

The court had to consider the principles of parity and the hurdles confronting the prosecution in proving complicity and causation in relation to the applicant. The applicant also argued that the delay in the case proceedings, the onerous conditions in custody due to COVID-19, the applicant's strong family support, the availability of employment, and the substantial surety provided, constituted exceptional circumstances warranting bail. The court had to weigh these factors against the seriousness of the charges and the interests of justice.

In its reasoning, the court found that the exceptional circumstances put forward by the applicant did indeed warrant bail. The court recognised the parity argument, noting that the prosecution's cases against the other co-accused were stronger, and there was no assertion of an unacceptable risk posed by the applicant if bail were granted. The court also considered the delay in proceedings, the conditions in custody, and the applicant's support network. Ultimately, the court accepted that bail should be granted, subject to stringent conditions. These conditions were designed to mitigate any potential risk while balancing the applicant's right to freedom pending trial.

The final orders of the court were that the applicant be granted bail, subject to a range of stringent conditions aimed at ensuring the applicant's attendance at court and minimising any potential risk. These conditions included electronic monitoring, a curfew, a substantial surety, and restrictions on the applicant's movements and associations. The court's decision highlighted the importance of considering all relevant factors in determining whether bail should be granted, and the need to balance the applicant's rights with the interests of justice and public safety.

Orders