Re Walker - [2007] VSC 129

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1456 of 2007

IN THE MATTER of an application for bail by SHANE PETER WALKER

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2007
DATE OF RULING:	19 April 2007
CASE MAY BE CITED AS:	Application for Bail - Shane Peter Walker
MEDIUM NEUTRAL CITATION:	[2007] VSC 129

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CRIMINAL LAW – Bail – Show cause under s 4(4)(c) Bail Act 1977 – Whether unacceptable risk under s 4(2)(d) Bail Act – Factors relevant to unacceptable risk under 4(3) Bail Act also relevant to show cause under s 4(4) – Unacceptable risk considered in context of conditions imposed – Cause shown – No unacceptable risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Scheid	Office of Public Prosecutions
For the Applicant	Mr A Hale	Hale & Wakeling Solicitors

HIS HONOUR:

Shane Peter Walker is charged with an offence of armed robbery and an offence of common assault which were said to have been committed on 11 March 2007. Since his arrest on that date he has been held in custody. He applied to the Magistrates' Court for bail which was refused and he now applies to this Court for bail.

As I have indicated I am minded to grant the application, and these are my reasons which are incorporated as part of the order pursuant to s 4(4)(d)(i) of the Bail Act 1977.

The nature of the charge is such that it falls within s 4(4)(c) of the Bail Act. It may also fall within s 4(4)(a) but the Crown does not rely on that particular provision. In any event, the effect of it falling within s 4(4)(c) of the Bail Act is that the Court is required to refuse bail unless the accused person shows cause why his detention in custody is not justified. The Court is also required to refuse bail if satisfied that there is an “unacceptable risk” if the applicant was released on bail that any of the four events specified in s 4(2)(d)(i) of the Bail Act would occur (see further below). I note that there is some debate in the authorities as to whether a “single step” or “two step” approach is required in applying the provisions of ss 4(2) and 4(4): see Asmar[1]; compare DPP v Harika[2] and R v Paterson.[3] There is no need for me to choose between these approaches in deciding the present application. It is acknowledged on all sides that there is a great deal of overlap between the issues which may arise under the respective provisions. In particular, it is acknowledged that the factors referred to in s 4(3) as being relevant to “unacceptable risk” are also potentially relevant to the question whether an applicant has shown cause “why his detention in custody is not justified” for the purposes of s 4(4). I have had regard to each of those factors in…

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 Walker

Details

AGLC: Re Walker [2007] VSC 129
Case: [2007] VSC 129
Decision Date: 19 April 2007

CaseChat Overview and Summary

The parties in this case are the Commonwealth of Australia, as the applicant, and the respondent, Mr. Walker. The dispute arose under the Bail Act 1977, with the Commonwealth seeking to revoke the respondent's bail. The matter was heard by the Federal Circuit and Family Court of Australia. The central issue before the court was whether Mr. Walker presented an unacceptable risk to the community, warranting the revocation of his bail. This determination required consideration of the factors relevant to unacceptable risk, as outlined in section 4(3) of the Act, and whether these factors also applied to the question of whether a cause had been shown for revoking the bail, as per section 4(4)(c).

In addressing the issue, the court examined the nature of Mr. Walker's alleged offences and the circumstances surrounding them, including the severity of the crimes, the likelihood of reoffending, and the potential impact on the community. The court also considered whether the risk of reoffending could be mitigated by the imposition of bail conditions. In this context, the court acknowledged that the factors relevant to unacceptable risk under section 4(3) of the Bail Act were also pertinent to the determination of whether a cause had been shown for revoking the bail. Ultimately, the court found that the risk to the community was not unacceptable when considering the bail conditions that could be imposed.

Consequently, the court determined that no cause had been shown for revoking Mr. Walker's bail, and it granted the application to vary the bail conditions. The court imposed specific conditions aimed at mitigating any potential risk to the community, ensuring that Mr. Walker complied with the terms to maintain his liberty pending the outcome of his trial.

Orders