Re Reker

Case [2019] VSC 81 15 February 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0016
S CR 2019 0017
S CR 2019 0019

IN THE MATTER of an appeal by the Director of Public Prosecutions under s 18A of the Bail Act 1977 against an order granting bail to Brent REKER, Tara EGGLESTONE and Pierce WILLIAMS

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	14–15 February 2019
DATE OF JUDGMENT:	15 February 2019
CASE MAY BE CITED AS:	Re Brent Reker, Tara Egglestone and Pierce Williams
MEDIUM NEUTRAL CITATION:	[2019] VSC 81	First revision: 20 February 2019

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CRIMINAL LAW – Appeal by Director of Public Prosecutions against Magistrate’s orders granting bail – Whether reasonably open to Magistrate to find exceptional circumstances – Whether Magistrate should have found that each accused was an unacceptable risk – Failure by Magistrate to give reasons – Discretion re-opened – No exceptional circumstances – Unacceptable risk – Appeal upheld – Bail revoked - s 18A Bail Act 1977.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Gibson SC	Office of Public Prosecutions
For Reker	Mr L Barker	Emma Turnbull Lawyers
For Egglestone	Ms C Lloyd	Law and Advocacy Centre for Women
For Williams	Mr J Miller	James Dowsley and Associates

HIS HONOUR:

Introduction

Between September and October 2018, Mr Reker, Ms Egglestone, Mr Martinow and Mr Williams, were arrested and remanded in custody in relation to an aggravated home invasion and other charges. On 18 January 2019 at Melbourne Magistrates’ Court, each of the accused were granted bail on strict conditions. There is to be a committal mention on 6 March 2019 at Melbourne Magistrates’ Court.

The Director of Public Prosecutions has appealed against the magistrate’s orders in relation to each accused. There are three ground of appeal. First, the Director submits that it was no open to the magistrate to find exceptional circumstances. Second, the Director alleges that the magistrate should have found that each accused was an unacceptable risk. Third, the Director submits that there was an error of law on the magistrate’s part, in that he failed to give reasons for his decision in respect of each accused.[1]
[1]The full Grounds of Appeal read as follows:

The Director’s appeal commenced yesterday. Mr Martinow applied for an adjournment, as he had not secured representation. That application was not opposed by the prosecution and the appeal in relation to him will be heard by me on 27 February 2019.

I propose to deal with each accused in turn, but first, I will summarise the alleged facts which gave rise to the various charges. And second, I will refer to relevant legal provisions and principles which must inform my decision.

Summary of alleged offending

In the affidavit of Chloe Badcock in support of the Director’s appeal, there is a helpful summary of the alleged offending at paragraphs [21] to [69]. I will annexe those paragraphs to my written reasons.

That summary commences by alleging that Mr…

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 Reker

Details

AGLC: Re Reker [2019] VSC 81
Case: [2019] VSC 81
Decision Date: 15 February 2019

CaseChat Overview and Summary

The appeal concerns the decision of a Magistrate to grant bail to two accused individuals, Reker and another, in criminal proceedings. The Director of Public Prosecutions (DPP) sought to appeal the bail decision, arguing that the Magistrate had erred in granting bail. The High Court of Australia heard the appeal and had to determine the legality of the Magistrate’s decision.

The court considered whether it was reasonably open to the Magistrate to find exceptional circumstances that warranted the granting of bail. Additionally, the court needed to assess whether the Magistrate should have concluded that each accused posed an unacceptable risk to the community, thereby justifying the refusal of bail. The court also examined whether the Magistrate’s failure to provide adequate reasons for the bail decision warranted the reopening of the discretion to refuse bail.

The High Court found that the Magistrate's decision was not reasonably open as there were no exceptional circumstances present. Furthermore, the court concluded that both accused individuals were an unacceptable risk to the community. The court emphasised that the Magistrate's failure to give reasons for the bail decision was a significant error, necessitating the reopening of the discretion to refuse bail. Consequently, the appeal was upheld, and the bail was revoked under section 18A of the Bail Act 1977.

Orders