Re Rodgers [No 2] - [2019] VSC 760

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0227

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by CHRISTOPHER RODGERS

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2019
DATE OF JUDGMENT:	20 November 2019
CASE MAY BE CITED AS:	Re Rodgers [No 2]
MEDIUM NEUTRAL CITATION:	[2019] VSC 760

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CRIMINAL LAW – Bail – Schedule 2 offences – Applicant required to show compelling reason justifying grant of bail – Whether compelling reason established – Whether unacceptable risk – Conditions of bail – Conditions of bail imposed to mitigate risk – Bail granted on strict conditions – Bail Act 1977, ss 1B, 3AAA, 4AA, 4C, 4E and 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms H Spowart	Legal & Prosecutions Specialists Branch, Victoria Police
For the Applicant	Mr D P Sheales	Tait Lawyers

HIS HONOUR:

The applicant has been in custody since 24 May 2019. He is currently charged with 33 offences, 32 of which arise out of incidents alleged to have occurred on three days in May of this year, and one of which involves the contravention of an undertaking given to the Ballarat Magistrates’ Court in July 2018 pursuant to s 83AC of the Sentencing Act.

The primary complainant in relation to the applicant’s alleged offending is his wife, although the alleged offending is also said to involve the complainant’s children. A number of the offences with which he is charged are schedule 2 offences within the meaning of s 3 of the Bail Act 1977 (‘the Act’).[1] As a result, the applicant is required to establish that a compelling reason exists that justifies the grant of bail before bail can be granted.[2] Additionally, bail must be refused if the prosecution satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail:

(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.[3]

[1]See items 7, 18, 19 and 23 of schedule 2 of the Act.

[2]See s 4C(1A) of the Act.

[3]See s 4E(1)(a) of the Act.

The applicant has previously applied for bail in this Court. That application was refused by Tinney J on 20 August 2019.[4] On 26 September 2019, an appeal to the Court of Appeal by the applicant was dismissed.[5]
[4]Re Rodgers [2019] VSC 553 (‘First Reasons’).
[5]Rodgers v The Queen [2019] VSCA 214 (‘Appeal Reasons’).

The applicant now applies for bail again in this Court.

Applicant’s background and circumstances of the alleged offending

The applicant’s background was relevantly summarised by the Court of Appeal in its reasons for dismissing the applicant’s appeal from the decision of Tinney J. For present purposes, it is sufficient to adopt…

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 Rodgers [No 2]

Details

AGLC: Re Rodgers [No 2] [2019] VSC 760
Case: [2019] VSC 760
Decision Date: 20 November 2019

CaseChat Overview and Summary

The case of Re Rodgers [No 2] involved an application for bail by the applicant, who faced charges under Schedule 2 of the Bail Act 1977. The applicant's legal team argued that there were compelling reasons justifying the grant of bail, given the circumstances of the case. The court was tasked with determining whether such compelling reasons existed and whether the applicant posed an unacceptable risk to the community if released on bail. Additionally, the court had to consider what conditions, if any, could be imposed to mitigate any risk associated with the applicant's release.

The legal issues before the court encompassed the threshold for compelling reasons under the Bail Act 1977, the criteria for assessing risk, and the appropriate conditions to impose to ensure the safety of the community. The court needed to balance the applicant's right to liberty against the potential risk to the community. The applicant's legal team presented evidence and arguments intended to demonstrate that the applicant's release on bail would not pose an unacceptable risk, and that compelling reasons existed for granting bail. The prosecution, on the other hand, argued that the risk was too high and that bail should be denied.

After thorough consideration of the evidence and arguments presented, the court concluded that there were compelling reasons for granting bail, and that the risk to the community could be mitigated by imposing strict bail conditions. The court found that the applicant's release on bail would not pose an unacceptable risk, provided that certain conditions were met. These conditions included strict reporting requirements, residence restrictions, and a curfew. The court was satisfied that these measures would sufficiently mitigate any potential risk to the community. Consequently, the court granted bail subject to these stringent conditions.

The final orders of the court included the granting of bail to the applicant, subject to the strict conditions outlined in the judgment. These conditions were designed to ensure that the applicant complied with all requirements, thereby reducing the risk to the community. The applicant was required to adhere to the imposed conditions, and any breach would result in the cancellation of bail and the applicant's immediate apprehension.

Orders