Re Salievski (No 2) - [2015] VSC 753

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0172

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by LIRIM SALIEVSKI

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2015
DATE OF JUDGMENT:	18 December 2015
CASE MAY BE CITED AS:	Re Salievski (No 2) (Bail Application)
MEDIUM NEUTRAL CITATION:	[2015] VSC 753

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CRIMINAL LAW – Bail – Handling stolen goods and dealing with the proceeds of crime – Applicant required to ‘show cause’ – Whether detention justified – Whether unacceptable risk – Previous refusal of bail – New facts and circumstances – Bail refused – Bail Act 1977 s 4(2)(d)(i), s4(4)(a), s 18, s 18AA.

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr N Watt (Solicitor)	Jodie Dunn, Australian Legal Practitioner for Victoria Police
For the Accused	Mr A Dickenson	Melasecca Kelly & Zayler

HIS HONOUR:

Lirim Salievski, the applicant, seeks bail from this Court. The application is supported by an affidavit of the applicant’s solicitor, Anh Nguyen, affirmed 2 December 2015 (‘the applicant’s affidavit’).

Since the applicant is charged ‘with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence‘, by virtue of s 4(4)(a) of the Bail Act 1977 (‘the Act’), the court must refuse bail unless the applicant shows cause why his detention in custody is not justified. In summary, the applicant relies on the following matters as set out in the applicant’s affidavit in an endeavour to ‘show cause’:

· first, the case against him ‘is defensible’;[1]
[1]In the course of oral submissions, however, counsel for the applicant described the prosecution case as ‘weak’.

· secondly, he has a stable place of residence with his mother and father in Dandenong;

· thirdly, he has employment available;

· fourthly, suggested delay in the disposition of the charges against him;

· fifthly, any time in custody imposed for the commission of the relevant offences ‘could exceed presentence detention’;

· sixthly, the applicant relies on strong ties to the jurisdiction; and

· seventhly, it is claimed that there is uncertainty ‘as to whether or not further time will be imposed for breaching [a] suspended sentence if the applicant is convicted on these charges’.

The respondent opposes bail. Two affidavits are relied upon: first, the affidavit of Sally Spalding, dated 7 October 2015, which was before me on a previous application on 15 October 2015; and, secondly, the affidavit of Senior Constable Lara Murray, sworn 9 December 2015 (‘the Murray affidavit’). It is submitted, first, that by virtue of s 4(4)(a) of the Act, the applicant is required to show cause why his detention in custody is not justified, in that he has been charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence; and, secondly, relying on s 4(2)(d)(i), it is submitted that there…

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 Salievski (No 2)

Details

AGLC: Re Salievski (No 2) [2015] VSC 753
Case: [2015] VSC 753
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case before the court involved an application for bail by the applicant, Salievski, who faced charges of handling stolen goods and dealing with the proceeds of crime. The matter was heard in the Supreme Court of the state. Salievski had previously been denied bail, and this application followed that refusal. The key legal issues the court needed to address were whether Salievski had demonstrated sufficient cause to justify his continued detention and whether there remained an unacceptable risk that he would reoffend or interfere with witnesses if released on bail.

The court examined the applicant’s history and the specific circumstances of the current charges. Salievski had a prior criminal record, which included offenses related to handling stolen property. The court noted that these previous offenses were similar in nature to the current charges, indicating a pattern of behaviour. The prosecution argued that the risk of reoffending remained high, given the unchanged circumstances and the applicant's past conduct. Salievski's legal representatives submitted that there had been changes in his personal situation, which should be considered as mitigating factors. However, the court found that these changes did not sufficiently outweigh the risk of reoffending or the potential for witness interference. Ultimately, the court concluded that the detention was justified as there was still an unacceptable risk that Salievski would not comply with bail conditions or interfere with the judicial process.

The Supreme Court, therefore, upheld the previous decision to refuse bail. The court found that Salievski had not provided adequate grounds to warrant a reconsideration of his detention. The risk of reoffending, coupled with the risk of witness interference, was deemed too significant to permit bail. The court relied on specific sections of the Bail Act 1977, particularly sections 4(2)(d)(i), 4(4)(a), 18, and 18AA, in reaching its decision. Salievski’s application for bail was therefore dismissed, and he remained in custody pending the resolution of his criminal charges.

Orders