Re Pusey (No 2) - [2022] VSC 682

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0228

IN THE MATTER of the Bail Act 1977

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IN THE MATTER of an application for bail by RICHARD PUSEY

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JUDGE:	Taylor JA
WHERE HELD:	Melbourne
DATES OF HEARING:	3 and 10 November 2022
DATE OF JUDGMENT:	10 November 2022
CASE MAY BE CITED AS:	Re Pusey (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 682

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CRIMINAL LAW – Bail – Applicant charged with use carriage service to offend and bail offences – Contested hearing of charges completed in Magistrates’ Court – Decision pending – Applicant previously refused bail in Supreme Court on same charges – Whether exceptional circumstances exist that justify the grant of bail – Whether Applicant an unacceptable risk of endangering the safety or welfare of any person or committing an offence whilst on bail – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 18, 18AA and 18AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The Applicant appeared in person
For the Respondent	Mr A Albore	Victoria Police

HER HONOUR:

Introduction

The applicant is charged with using a carriage service to offend (two charges) and committing an indictable offence whilst on bail (two charges).

The contested hearing of those charges took place in the Sunshine Magistrates’ Court over three days, namely 9 and 10 August 2022 and 28 October 2022. The matter was originally listed for decision on 2 December 2022. By letter dated 7 November 2022, the criminal registry of this Court was advised by the Magistrates’ Court that the decision will now be delivered on 14 November 2022.

The applicant has been remanded on these charges since 8 February 2022. They[1] have since twice been refused bail: on 23 May 2022 in the Magistrates’ Court and on 8 July 2022 in this Court.[2]
[1]The applicant uses they/them pronouns.
[2]Re Pusey [2022] VSC 455 (‘Re Pusey’).

By a Notice of Intention to Make an Application for Bail dated 14 July 2022, the applicant again applies for bail in this Court.

For the reasons that follow, bail is refused.

Summary of allegations

The allegations are detailed in Re Pusey and are not here repeated.

It is sufficient to note that the applicant is accused of transmitting images of deceased and dying police officers to the Australian Financial Complaints Authority (AFCA) as part of a complaint about an insurance company refusing a claim in relation to their car. Those images were taken by the applicant at the scene of a collision on the Eastern Freeway in April 2020. The applicant is further accused of using one of the images as a profile picture in a Google Review of the Porsche Centre Melbourne in reference to that Centre’s refusal of a claim for damage to the same car. At the time of each allegation, the applicant was subject to a grant of bail.

Procedural history

As noted above, having been…

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 Pusey (No 2)

Details

AGLC: Re Pusey (No 2) [2022] VSC 682
Case: [2022] VSC 682
Decision Date: 10 November 2022

CaseChat Overview and Summary

In the case of Re Pusey, the applicant was seeking bail while facing charges related to the use of a carriage service to offend and various bail-related offences. The case was heard in the Supreme Court of Victoria. The applicant had previously been refused bail by the same court on similar charges, and the decision on the current bail application was pending after a contested hearing in the Magistrates' Court.

The central legal issues revolved around whether there were exceptional circumstances that warranted the granting of bail and whether the applicant posed an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail. The court had to weigh the nature and seriousness of the charges against the applicant's arguments for release. The applicant argued that there had been significant changes in circumstances since the last bail application, which warranted a reconsideration. However, the prosecution contended that the applicant remained a risk to the community and was likely to reoffend.

The Supreme Court examined the evidence presented and considered the relevant provisions of the Bail Act 1977, including sections 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 18, 18AA, and 18AB. The court concluded that there were no exceptional circumstances that would justify granting bail. Furthermore, the court determined that the applicant was an unacceptable risk to the safety and welfare of others and was likely to commit further offences if released on bail. As a result, the application for bail was refused.

The final orders of the court were that the applicant's bail application was dismissed, and the applicant was to remain in custody pending the resolution of the charges against them.

Orders