Re SH - [2022] VSC 584

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0184

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by SH

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF JUDGMENT:	12 August 2022
CASE MAY BE CITED AS:	Re SH
MEDIUM NEUTRAL CITATION:	[2022] VSC 584

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CRIMINAL LAW — Application for Bail — Exceptional circumstances not found — Applicant charged with make threat to kill, carry a dangerous item in a public place, obtain property by deception, theft, and commit an indictable offence on bail — Criminal history — Special vulnerability and mental health — Availability of a bail address — Delay — Unacceptable risk — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Moore	Matthew White and Associates
For the Respondent	Mr Gauld	Victoria Police

HIS HONOUR:

Introduction

Simon Hunter (‘the applicant’), seeks bail in relation to five charges: make threat to kill, carry a dangerous item in a public place, obtain property by deception, theft, and commit an indictable offence on bail.

The applicant was charged in custody by informant Finlayson on 6 June 2022. On 8 June 2022, the applicant was refused bail in the Heidelberg Magistrates’ Court.[1]
[1]Bail was refused on the basis that exceptional circumstances were not established, and that there was an unacceptable risk that the applicant would commit an offence on bail, endanger the safety or welfare of any person, and interfere with a witness or otherwise obstruct the course of justice. Magistrate Livingstone was particularly concerned about the risk the applicant posed to the safety of the complainant.

The applicant is currently on summons in relation to four charges of contravening a personal safety intervention order (informants Mutschler and Thomas), and is on bail in relation to five charges:[2] two charges of stalking, two charges of using a postal service in a menacing, harassing or offensive way, and one charge of possessing a weapon (informant Elzink).
[2]Police bail, granted 8 November 2021.

The next listing dates in the Heidelberg Magistrates’ Court are:

(a) 6 September 2022 for contest mention (informants Finlayson, Mutschler and Elzink); and

(b) 19 December 2022 for mention (informant Thomas).

The alleged offending
Background

The applicant and Mr Rehmtulla (the primary complainant) have been next door neighbours since the beginning of 2019.
The applicant has a significant mental health history, which I will discuss below.
Informant Mutschler matter (summons)
On 29 September 2020, an interim personal safety intervention order (‘PSIO’) was granted protecting Mr Rehmtulla from the applicant. The applicant was served with the PSIO on 30 September 2020.
On 9 November 2020, the complainant was gardening. He heard a person on the other side of the fence saying “you gay cunt” multiple times. The complainant looked over the fence and saw the applicant. Five minutes later, the applicant came to…

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 SH

Details

AGLC: Re SH [2022] VSC 584
Case: [2022] VSC 584
Decision Date: 12 August 2022

CaseChat Overview and Summary

The applicant in this case, who is charged with making a threat to kill, carrying a dangerous item in a public place, obtaining property by deception, theft, and committing an indictable offence while on bail, sought bail from the Court of Appeal. The application was brought from the County Court, where the original application was dismissed. The applicant's criminal history, special vulnerability, and mental health issues, as well as the availability of a bail address, were all factors considered in the appeal. The applicant also raised concerns about the delay in the hearing of the appeal.

The legal issues before the court included whether the applicant's criminal history and the nature of the current charges constituted exceptional circumstances that warranted bail, and whether the risk posed by the applicant to the community was unacceptable. The court had to consider the relevant provisions of the Bail Act 1977 (Vic) in making its decision.

The court found that the applicant's criminal history and the nature of the current charges did not constitute exceptional circumstances. The court also found that the risk posed by the applicant to the community was unacceptable, taking into account the seriousness of the current charges and the applicant's criminal history. The court noted that the delay in the hearing of the appeal did not constitute exceptional circumstances, and that the availability of a bail address did not outweigh the risk posed by the applicant to the community. The court therefore refused the application for bail.

The court's decision was based on a careful consideration of the relevant provisions of the Bail Act 1977 (Vic), as well as the facts and circumstances of the case. The court found that the risk posed by the applicant to the community was unacceptable, and that the applicant's criminal history and the nature of the current charges did not constitute exceptional circumstances. The court also noted that the delay in the hearing of the appeal did not constitute exceptional circumstances, and that the availability of a bail address did not outweigh the risk posed by the applicant to the community. The court therefore refused the application for bail.

Orders