Re Russell - [2021] VSC 657

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0249

IN THE MATTER of the Bail Act 1977

- and –

IN THE MATTER of an Application for Bail by JENAE RUSSELL

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2021
DATE OF JUDGMENT:	8 October 2021
CASE MAY BE CITED AS:	Re Russell
MEDIUM NEUTRAL CITATION:	[2021] VSC 657

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CRIMINAL LAW – Bail – False imprisonment and perjury – 40-year-old mother of three children - Some criminal history but little for violence – First time in custody – Onerous custodial conditions due to impact of COVID-19 – Likely 2½ year delay before trial – Availability of strong family and other supports including CISP – Stable accommodation – Substantial surety – Compelling reason made out – Unacceptable risk not established – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L Cameron	Stary Norton Halphen
For the Respondent	Ms E Maguire	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

The applicant applies for bail on charges she faces of false imprisonment (charge 1), intentionally causing injury (charge 2), committing an indictable offence whilst on bail (charge 3), theft (charge 4), perjury (charge 5), possession of cannabis (charge 6), and possession of cartridge ammunition (charge 7). The informant in respect of all of the charges is Detective Senior Constable Kate Shell (‘the informant’) .

It is agreed between the parties that because of the nature of the charges faced by the applicant, I must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[1]
[1]Bail Act 1977, s 4C(1A).

Procedural history and brief chronology

The alleged offending took place on 20 June 2021 and 10 August 2021. At the time, the applicant was subject to a grant of bail on a single charge of possessing a drug of dependence (methylamphetamine) and was also subject to a summons for a charge of driving whilst suspended.

The applicant was arrested and charged with the first six charges on 10 August 2021. She was charged with charge 7 on 13 September 2021. A filing hearing was held on 11 August 2021 and the applicant was remanded in custody for a committal case conference on 26 October 2021. The hand-up brief was served on or about 14 September 2021.

The applicant applied for bail in the Magistrates’ Court on 18 August 2021. Bail was refused by the learned magistrate on the ground that the applicant was an unacceptable risk within the meaning of s s4E(1) of the Bail Act 1977 (‘the Act’).

All co-accused other than Angwin and Salau have brought unsuccessful applications for bail in the Magistrates’ Court. All co-accused currently remain in custody.

Summary of offending

The alleged offending involves a total of nine offenders including the applicant and concerns the false imprisonment and assault of a man…

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 Russell

Details

AGLC: Re Russell [2021] VSC 657
Case: [2021] VSC 657
Decision Date: 8 October 2021

CaseChat Overview and Summary

The respondent, a 40-year-old mother of three children, was charged with false imprisonment and perjury. She faced the possibility of spending a significant period in custody before her trial due to the impact of COVID-19, which was expected to delay proceedings by 2½ years. This case came before the Court of Appeal, which was tasked with determining whether bail should be granted under the Bail Act 1977.

The legal issues centred around whether the respondent met the criteria for bail, particularly given the unique circumstances of the COVID-19 pandemic and the potential length of time she would spend in custody before her trial. The court had to consider the nature and circumstances of the offences, the likely delay before trial, and the respondent's suitability for bail in light of her criminal history, family situation, and the availability of support services.

The Court of Appeal found that the respondent had made out a compelling reason for bail, as the anticipated delay in her trial due to the pandemic was significant and would cause undue hardship. The court noted that while the respondent had a history of criminal activity, this was mostly non-violent and she had no history of violence. Additionally, she had strong family and community support, stable accommodation, and was willing to provide a substantial surety. The court concluded that there was no unacceptable risk to the community if bail was granted, and therefore, it was in the interests of justice to grant bail with conditions.

The final orders of the court were to grant bail to the respondent, subject to conditions including regular reporting to a supervisory officer, adherence to a curfew, and restrictions on travel. The court also imposed conditions to ensure the safety and well-being of the respondent and her family, and to maintain the integrity of the legal process.

Orders