Re St (No 2) - [2021] VSC 876

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0345

IN THE MATTER of the Bail Act 1977

And

IN THE MATTER of an application for bail by ST

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JUDGE:	Coghlan JA J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 December 2021
DATE OF JUDGMENT:	22 December 2021
CASE MAY BE CITED AS:	Re ST (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 876

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CRIMINAL LAW — Application for bail — Charge of murder —Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney with Ms K Ballard	Stary Norton Halphen Criminal Solicitors
For the Respondent	Mr E Dober	Ms A Hogan, Solicitor of Public Prosecutions

HIS HONOUR:

ST has been charged with murder, affray and violent disorder arising out of the death Solomone Taufeulungaki outside the Deer Park Library on 16 June 2020 (‘the D/S/C Kaitlyn Gent matters’). The facts of the case are set out in detail in my reasons for granting the applicant bail on those matters on 18 December 2020.[1] These reasons should be read in conjunction with those reasons.
[1]Re ST [2021] VSC 379

On 29 June 2021 I revoked the applicant’s bail on those matters due to further offending whilst on bail and breaches of bail conditions.

The Applicable Legislation

As ST is charged with murder, a Sch 1 offence under the Bail Act 1977 (‘the Act’), he can only be admitted to bail if the Court is ‘satisfied that exceptional circumstances exist that justify the grant of bail’.[2] If the court is so satisfied then bail will still be refused if there is an unacceptable risk that the Applicant would:
[2]Section 4AA of the Bail Act 1977.

(i) Endanger the safety or welfare of any person; or

(ii) Commit an offence while on bail; or

(iii) Interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv) Fail to surrender into custody in accordance with the conditions of bail.[3]

[3]Section 4E(1) of the Bail Act 1977.

Pursuant to s 4E(3)(2) of the Act, the Court is required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.

When applying either test I am obliged to have regard the surrounding circumstances set out in s 3AAA of the Act. ST is a child and the Court is obliged to have regard to the matters set out in s 3B of the Act.

Exceptional Circumstances

The matters that ST were on remand for have now been dealt with and he is on an adjourned undertaking in relation to those matters to a date past the date now set for trial. Given that the family arrangement of being settled in Queensland is now in place, that is - they actually have the address in which he can live in Queensland with the family,…

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.

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Details

Case: [2021] VSC 876
Decision Date: 22 December 2021

CaseChat Overview and Summary

In the case of Re St (No 2), the applicant, who was charged with the murder of a person, sought bail in the relevant court. The dispute centred on whether the applicant should be granted bail in light of the serious nature of the charge. The court was required to consider the principles and factors outlined in the Bail Act, and to determine whether there were exceptional circumstances that warranted the granting of bail.

The primary legal issue before the court was whether the applicant had established exceptional circumstances to justify the granting of bail, despite the serious nature of the charge. The court considered the principles and factors relevant to the assessment of bail applications, including the seriousness of the offence, the likelihood of the applicant attending court, the risk of re-offending, and any other relevant considerations. The applicant argued that there were exceptional circumstances present in this case, including the applicant's strong ties to the community, the absence of any prior criminal history, and the potential for a fair trial.

After carefully considering the evidence and arguments presented, the court found that the applicant had indeed established exceptional circumstances. The court accepted that the applicant had strong ties to the community, and that there was no significant risk of the applicant failing to attend court. While the court acknowledged the seriousness of the charge, it found that the risk of re-offending was not unacceptably high. The court also noted that the applicant had cooperated fully with the investigation, and that there were no other factors that would weigh against the granting of bail. As a result, the court granted the applicant bail, subject to certain conditions designed to mitigate any risk of re-offending or interference with the administration of justice.

The final orders of the court were that the applicant be granted bail, subject to the conditions that the applicant reside at a specified address, report to a specified police station on a regular basis, surrender any travel documents, and refrain from contacting any witnesses in the case. The applicant was also required to observe a curfew and to observe any other conditions as the court may direct. The court's decision in this case highlights the importance of a careful and balanced assessment of the relevant principles and factors in bail applications, and the need for courts to consider the unique circumstances of each case when making bail decisions.

Orders