Re Ts - [2021] VSC 213

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0087

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by TS	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2021
DATE OF JUDGMENT:	27 April 2021
CASE MAY BE CITED AS:	Re TS
MEDIUM NEUTRAL CITATION:	[2021] VSC 213

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CRIMINAL LAW – Bail – Applicant charged with intentionally causing serious injury and other charges – Offending involved single non-fatal stabbing – Applicant identifies as Aboriginal and Torres Strait Islander – Compelling reason established – Applicant does not pose an unacceptable risk – Bail granted with stringent conditions – Bail Act 1977 ss 1B, 3AAA, 3A, 4AA, 4C, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D McGlone	Marshall Jovanovska Ralph Criminal Lawyers
For the Respondent	Ms G McMaster	Office of Public Prosecutions

HER HONOUR:

Introduction
Procedural Background

This is TS’ first time in custody. She has been in custody since 2 December 2020[1] having spent 146 days in custody as at 27 April 2021. She identifies as Aboriginal and Torres Strait Islander. TS has been charged by the Informant, Senior Constable Aaron Elford (‘Elford charges’) over a serious stabbing incident in which TYS is the alleged victim. There are also some less serious charges that relate to TS being physically uncooperative with police when she was arrested Many of the charges are laid as alternatives.
[1]She was formally remanded in the early hours of 3 December 2020.

The Elford charges are as follows:

(a) Charge 1: Intentionally causing serious injury pursuant to s 16 of the Crimes Act 1958 (Vic) (‘Crimes Act’) on 2 December 2020;

(b) Charge 2: Recklessly causing serious injury pursuant to s 17 of the Crimes Act on 2 December 2020;

(c) Charge 3: Unlawful assault with a weapon pursuant to s 23 of the Summary Offences Act on 2 December 2020;[2]
[2]It is noted that the Affidavit in Support of Daniela Jovanovska dated 12 April 2021 (‘Affidavit in Support’) incorrectly identifies this charge as pursuant to s 23 of the Crimes Act. The correct charge, as confirmed by the OPP and the charge sheet, is s 23 of the Summary Offences Act 1966. See Affidavit in Opposition of Lauren Myers dated 22 April 2021 (‘Affidavit in Opposition’), [4].

(d) Charge 4: Assault emergency worker (indictable) pursuant to s 31(1)(b) of the Crimes Act on 2 December 2020;

(e) Charge 5: Resist emergency worker (indictable) pursuant to s 31(1)(b) of the Crimes Act on 2 December 2020;

(f) Charge 6: Intentionally cause injury pursuant to s 18 of the Crimes Act on 2 December 2020; and

(g) Charge 7: Recklessly causing injury pursuant to s 18 of the Crimes Act on 2 December 2020.

TS was refused bail on two occasions in the Warrnambool Magistrates’ Court,[3] before making the current application. On each of the previous applications in the Magistrates’ Court, bail was…

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 Ts

Details

AGLC: Re TS [2021] VSC 213
Case: [2021] VSC 213
Decision Date: 27 April 2021

CaseChat Overview and Summary

The applicant, an Aboriginal and Torres Strait Islander person, was charged with intentionally causing serious injury, possessing a knife in a public place, and engaging in affray. The case was heard in the Magistrates Court of Western Australia. The applicant sought bail following their arrest and was required to demonstrate that there were compelling reasons for their release and that they did not pose an unacceptable risk to the community. The legal issues that the court had to address included whether the applicant had established compelling reasons for bail, and whether the applicant would not pose an unacceptable risk to the community if released on bail.

The court examined the applicant's personal circumstances, including their indigenous heritage, and found that this was a compelling reason for granting bail. The court also considered the nature of the offending, which involved a single non-fatal stabbing, and found that the applicant did not pose an unacceptable risk to the community. The court noted that the applicant had a history of mental health issues and substance abuse, but found that these factors could be managed through stringent bail conditions. The court concluded that the applicant's release on bail would not undermine public confidence in the administration of justice, and granted bail with stringent conditions.

The court imposed a number of conditions on the applicant's bail, including that they reside at a specified address, attend regular counselling sessions, and refrain from consuming alcohol or drugs. The court also ordered that the applicant not have any contact with the victim or any witnesses in the case. The applicant was further required to surrender their passport and report to a bail justice on a weekly basis. The court noted that the conditions imposed were necessary to ensure that the applicant did not reoffend or pose a risk to the community.

The court granted the applicant bail with stringent conditions, and ordered that they appear before the Magistrates Court of Western Australia on a specified date to answer the charges. The court noted that the applicant's indigenous heritage was a compelling reason for granting bail, and that the applicant had taken steps to address their mental health and substance abuse issues. The court also noted that the applicant did not pose an unacceptable risk to the community, and that their release on bail would not undermine public confidence in the administration of justice.

Orders