JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF JUDGMENT:	31 August 2021
CASE MAY BE CITED AS:	Re Strachan
MEDIUM NEUTRAL CITATION:	[2021] VSC 538

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CRIMINAL LAW — Application for bail — Charges of persistent contravention of a family violence intervention order, contravening a family violence intervention order and bail offending — Allegations of family violence — Delay — Seriousness of the offending — Availability of Court Integrated Services Program support — Exceptional circumstances not established — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA — Cases cited: Roberts v The Queen [2021] VSCA 28; Re Brown [2019] VSC 751.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Chris Oldham	Slades & Parsons Criminal Law
For the Respondent	Mr Peter Murphy	Victoria Police

HIS HONOUR:

This is an application for bail by Benjamin Strachan (the ‘applicant’).

The applicant has been in custody on remand since 12 August 2021, having been charged on that date by First Constable Laura Kemp with one charge of persistent contravention of a family violence intervention order (‘FVIO’),[1] seven charges of contravening a FVIO,[2] one charge of committing an indictable offence whilst on bail[3] and seven charges of contravening a conduct condition of bail (the ‘informant Kemp matter’).[4] These charges were alleged to have occurred between 31 July 2021 and 12 August 2021.
[1]Contrary to s 125A(1) of the Family Violence Protection Act 2008 (Vic).
[2]Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
[3]Contrary to s 30B of the Bail Act 1977 (Vic).
[4]Contrary to s 30A(1) of the Bail Act 1977 (Vic).

The following day, on 13 August 2021, the applicant was refused bail in the Geelong Magistrates’ Court on the basis that he posed an unacceptable risk of committing an offence whilst on bail, endangering the safety and welfare of any person, and interfering with a witness or otherwise obstructing the course of justice.

On 18 August 2021, the applicant filed an application for bail in this Court. The matter is next listed for a contest mention in the Geelong Magistrates’ Court on 12 October 2021. On the basis of enquiries made of the Geelong Court, a contested hearing for these matters could be accommodated in that Court in January or February 2022.

Procedural history

At the time of the alleged offending in the informant Kemp matter, the applicant was on bail and summons in relation to four other matters. He was also the respondent to a final FVIO, where his wife and four children were named as the affected family members. Prior to the imposition of the final FVIO, the applicant had been subject to both a family violence safety notice (‘FVSN’) and an interim…

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 Strachan

Details

AGLC: Re Strachan [2021] VSC 538
Case: [2021] VSC 538
Decision Date: 31 August 2021

CaseChat Overview and Summary

In the matter of Re Strachan, the Court considered an application for bail in relation to a defendant charged with multiple offences. Strachan faced charges of persistent contravention of a family violence intervention order, contravening a family violence intervention order, and bail offending. The allegations related to incidents of family violence, and the application was heard in the County Court of Victoria.

The court's task was to determine whether bail should be granted, taking into account the seriousness of the offending, any delay in making the application, and the potential for the defendant to receive support through the Court Integrated Services Program. The court considered the principles established in Roberts v The Queen and Re Brown, which emphasise the need to balance the rights of the accused with the protection of the community. The court found that while Strachan had not established exceptional circumstances warranting bail, the application did not present an insurmountable obstacle to a fair trial.

Ultimately, the court concluded that the seriousness of the alleged offending, combined with the risk of reoffending, outweighed the considerations in favour of bail. The court also noted the absence of any delay in making the application and the availability of support services. Consequently, the application for bail was refused.

The final orders of the court were that Strachan remain in custody pending the resolution of the charges against them.

Orders