Re Sheen - [2015] VSC 486

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0128

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by Mark SHEEN

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2015
DATE OF JUDGMENT:	10 September 2015
CASE MAY BE CITED AS:	Re Sheen (Bail Application)
MEDIUM NEUTRAL CITATION:	[2015] VSC 486

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CRIMINAL LAW – Bail – Murder – Whether the applicant has exceptional circumstances why detention not justified – Bail Act 1977, s 13(2) – Exceptional circumstances not established.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Lewis	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Ms N Kaddeche	Turnbull Lawyers

HIS HONOUR:

Introduction

Mark Sheen, the applicant, is charged with the murder of Gary Faull on 4 April 2015.

He has made application to this Court for bail.

In my view, the application must be refused.

As I have said, the applicant is charged with murder.[1] Pursuant to s 13(2) of the Bail Act 1977, the Court is required to refuse bail in the case of a person charged with murder unless ‘satisfied that exceptional circumstances exist which justify the making of such an order’.
[1]He is also charged with failing to render assistance after an accident (charge 2); failure to stop after an accident where a person was injured (charge 3); failure to provide name and address after motor vehicle accident where a person was injured (charge 4); possession of a drug of dependence (amphetamine) (charge 5); possession of a prohibited weapon without exemption (knuckledusters) (charge 6); driving whilst disqualified (charge 7).

It is clear that exceptional circumstances justifying the grant of bail may flow from a concatenation of circumstances, none of which alone would justify the making of an order.

In this case, the applicant relies on a combination of factors spelled out in the affidavits of his solicitor, Adrian Lewin, affirmed 27 August 2015 and 5 September 2015, which have been filed in support of his application. In summary, those factors are:

· a weak prosecution case;

· delay in the matter coming to trial;

· the applicant’s youth;

· this is the applicant’s first time in custody;

· the applicant has employment available;

· the applicant has stable accommodation available;

· his criminal history is not a disqualifying factor; and

· any risk may be adequately ameliorated by conditions.

Weak Crown case

Since the applicant places substantial reliance of the assertion that the prosecution case of murder is weak, it is necessary to say something about the main features of the case.

The prosecution case is that at about 5.15pm on Saturday, 4 April 2015, the applicant rode a motorcycle along Howitt Avenue, Corio, at a fast speed. Gary Faull, the deceased, was standing on the nature strip in Howitt Avenue. Mr Faull, who was raking a neighbour’s lawn, had a rake in his hands which he threw out…

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 Sheen

Details

AGLC: Re Sheen (Bail Application) [2015] VSC 486
Case: [2015] VSC 486
Decision Date: 10 September 2015

CaseChat Overview and Summary

The matter of Re Sheen involved the applicant, Sheen, who applied for bail in the context of a serious criminal charge of murder. The application was heard in the Supreme Court of Queensland, which had jurisdiction to hear bail applications in cases involving serious indictable offences. The central issue before the court was whether exceptional circumstances existed that would justify the applicant's release on bail, given the gravity of the charge against him.

The court examined the criteria under section 13(2) of the Bail Act 1977 to determine if Sheen had established exceptional circumstances warranting his release from detention. The court considered the nature of the offence, the circumstances of the alleged crime, and the risk of flight if released on bail. In reaching its decision, the court weighed the potential harm to the community against the applicant's right to liberty. The court concluded that, while Sheen had provided some evidence to support his application, these circumstances were not exceptional enough to justify his release on bail.

After thorough deliberation, the court found that the exceptional circumstances required by the Bail Act had not been substantiated by Sheen. Consequently, the application for bail was dismissed, and Sheen remained in detention. The court emphasised the seriousness of the charge and the need to ensure public safety and confidence in the justice system. The final orders of the court were that the application for bail be refused, and the applicant remain in custody pending further proceedings.

Orders