Re Powell - [2025] VSC 412

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2025 0105

IN THE MATTER of the Bail Act 1977

-and –

IN THE MATTER of an Application for Bail by FREDRICK POWELL

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2025
DATE OF JUDGMENT:	2 July 2025
DATE OF REASONS:	7 July 2025
CASE MAY BE CITED AS:	Re Powell
MEDIUM NEUTRAL CITATION:	[2025] VSC 412

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CRIMINAL LAW – Bail – Aggravated burglary and assault with intent to commit a sexual offence (‘trial indictment charges’), and persistent contravention of family violence intervention order (‘FVIO’) (x2) (‘plea indictment charges’) – Alleged offending against former partner – Prior convictions for offences including persistent contravention of FVIO and assault against same complainant – Applicant subject to community correction order at time of offending – Two trials of trial indictment charges commenced and then juries discharged – Third trial listed 7 October 2025 – Bail refused by trial judge following aborted trials – Exceptional circumstances test – Combination of matters including relative strength of Crown case, delay and availability of supports relied upon in proof of exceptional circumstances – Exceptional circumstances not established – Unacceptable risk in any event – Application refused – Bail Act 1977 ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Hooper	Angus Cameron Lawyers
For the Respondent	Ms D Caruso	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

The applicant applied for bail on charges he faces contained on two indictments filed in the County Court. The first indictment contains charges of aggravated burglary and assault with intent to commit a sexual offence (‘the trial indictment’). The second indictment contains two charges of persistent contravention of a family violence intervention order (‘FVIO’) (‘the plea indictment’). The complainant in respect of the trial indictment charges and affected family member (‘AFM’) in respect of the plea indictment charges is a female and the former partner of the applicant, whom I will call ‘CM’ or ‘the complainant’.

The charges of aggravated burglary and assault with intent to commit a sexual offences are both offences contained within Schedule 2 to the Bail Act 1977 (‘the Act’). At the time of the alleged commission of these offences, the applicant was subject to a community correction order (‘CCO’) for a range of offences including persistent contravention of a FVIO. For that reason, the applicant was in the position of having to establish the existence of exceptional circumstances before bail could be granted.[1]
[1]Bail Act 1977 s 4AA(2)(c)(iv) and 4A(1A) (‘the Act’).

Having heard the application, I was not satisfied of the existence of exceptional circumstances that justified the grant of bail. I therefore refused bail. I was also of the view that, had exceptional circumstances been established, the prosecution had clearly discharged the onus of establishing that the applicant posed an unacceptable risk of one or more of the types of risks identified…

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 Powell

Details

AGLC: Re Powell [2025] VSC 412
Case: [2025] VSC 412
Decision Date: 2 July 2025

CaseChat Overview and Summary

In the matter of Re Powell, the applicant faced a refusal of bail in the Supreme Court of Victoria. The applicant stood charged with aggravated burglary and assault with intent to commit a sexual offence, along with persistent contravention of a family violence intervention order. The applicant was alleged to have committed these offences against a former partner, with a history of similar convictions, including persistent contravention of a family violence intervention order and assault against the same complainant. At the time of the alleged offending, the applicant was subject to a community correction order. Following the discharge of two juries, a third trial was scheduled for 7 October 2025. The trial judge denied bail, citing exceptional circumstances as the basis for the refusal.

The legal issues before the court involved determining whether the exceptional circumstances test was met, considering the strength of the Crown’s case, the delay in the proceedings, and the availability of supports that the applicant relied on for proof of exceptional circumstances. The court also needed to assess whether the applicant posed an unacceptable risk to the community or any person if granted bail. The applicant argued that exceptional circumstances existed due to the aborted trials and the delays involved. The Crown, however, maintained that the risk factors and the nature of the charges warranted a denial of bail.

The court examined the strength of the evidence against the applicant, which included prior convictions for similar offences, and the risk of reoffending. The court found that the exceptional circumstances test was not met, as the combination of factors presented did not sufficiently establish exceptional circumstances. Furthermore, the court concluded that the applicant posed an unacceptable risk to the community, given the nature of the charges and the history of persistent offending. Consequently, the application for bail was refused.

The final orders of the court were that the application for bail was refused, with the court emphasising the unacceptable risk the applicant posed to the community and the lack of exceptional circumstances to warrant bail.

Orders