Re Scott - [2011] VSC 674

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 0094 of 2011

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by NATHAN SCOTT

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 20119
DATE OF RULING:	14 November 2011
CASE MAY BE CITED AS:	Re Scott
MEDIUM NEUTRAL CITATION:	[2011] VSC 674	Amended 17 January 2012

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CRIMINAL LAW – Bail – Charge of murder – Whether new facts and circumstances - Whether exceptional circumstances – Strength of Crown case – Youth of applicant – Whether applicant unacceptable risk of interfering with witnesses.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Ristivojevic	C Marshall & Associates
For the Respondent	Mr Roper	Office of Public Prosecutions

HIS HONOUR:

The applicant, Nathan Scott is charged with murder. He has been in custody since 18 March 2011, and he turned 19 two days before that. On 4 May 2011 the applicant was refused bail by my brother, Justice Kaye having failed to demonstrate exceptional circumstances. His Honour was of the view that at that time the applicant was an unacceptable risk of interfering with witnesses.[1]
[1]Re Scott [2011] VSC 187.

At Paragraphs 29 and 30 of his reasons his Honour remarked that his conclusions were as at May 2011 and that circumstances may alter as the matter proceeds towards trial, which may cause the question of bail to be revisited.

New facts and circumstances

A threshold question that must be determined in the applicant's favour before I can reconsider the issue of bail, is whether the applicant has demonstrated that new facts and circumstances have arisen since the refusal of bail in May of this year. New facts and/or circumstances must be material. In Mokbel v. DPP[2] Justice Gillard said:

In my view the new facts or circumstances must be of such a nature that they are relevant to bail and justify a conclusion by the Court that reconsideration of the refusal of bail is required.[3]

A little further on his Honour said:
Clearly not every new fact or circumstance will fall into this category.[4]

[2][2002] VSC 127.

[3]Ibid [39].

[4]Ibid [40].

In this case the applicant relies on changes or developments in a number of areas in attempting to meet the onus cast upon him to demonstrate new facts and circumstances. In short, they are these:

(a) Since the earlier application the hand-up brief has been served. It is submitted by the applicant that it discloses evidence that materially impacts upon the assessment of the strength of the Crown case made by Justice Kaye;

(b)The applicant has a three year old daughter currently in care with a family in Nathalia. Access visits to the Melbourne Remand Centre are extremely onerous for the child, involving as they do, an 8 to 12 hour round trip; and
(c)The applicant has significantly more support available now if he were released…

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 Scott

Details

AGLC: Re Scott [2011] VSC 674
Case: [2011] VSC 674
Decision Date: 14 November 2011

CaseChat Overview and Summary

The case of Re Scott involved the applicant, Scott, seeking bail on a charge of murder. The applicant's application was opposed by the prosecution. The matter was heard in the Supreme Court of Victoria. The primary legal issues before the court were whether there had been a change in circumstances warranting a reconsideration of bail, and if the applicant's release on bail would constitute an unacceptable risk of interfering with witnesses.

The court examined the nature of the new facts presented by the applicant and considered whether these facts amounted to a significant change in circumstances that would warrant a re-evaluation of the bail application. The court also assessed the strength of the prosecution's case and whether the applicant's release on bail would pose an unacceptable risk of witness interference. The youth of the applicant was considered as a mitigating factor, but the court balanced this against the seriousness of the charge and the potential impact on the administration of justice.

The court determined that while the new facts presented by the applicant did not constitute a change in circumstances warranting a bail re-assessment, the exceptional circumstances of the case warranted consideration. The court acknowledged the strength of the prosecution's case, but also recognised the youth of the applicant and the potential for rehabilitation. Ultimately, the court concluded that the risk of witness interference outweighed the potential benefits of granting bail. The court denied the applicant's bail application.

Orders