Re Wilson - [2006] VSC 178

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

BAIL APPLICATION

No. 1452 of 2006

IN THE MATTER of the Bail Act 1997

And

IN THE MATTER OF an Application for Bail of EDWARD CHARLES WILSON

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2006
DATE OF RULING:	10 May 2006
CASE MAY BE CITED AS:	In the matter of Edward Charles Wilson
MEDIUM NEUTRAL CITATION:	[2006] VSC 178

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Criminal Law – bail – accused charged with “show cause” and other offences – parity principle on bail applications – application for bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Bliss	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For the Accused	Mr G. Meredith	Jeremy Harper & Associates

HIS HONOUR:

This is an application by Edward Charles Wilson, who I will refer to as “the accused” for bail.

The accused is charged with a number of offences, as follows:

(1)       Two counts of aggravated burglary
(2)       Arson
(3)       Intentionally causing serious injury
(4)       Reckless conduct endangering life
(5)       Reckless conduct causing serious injury

The alleged offences took place at Ballarat in the early hours of Saturday morning 4 February 2006.

The accused and a co-accused, Adam John Hetherington, were arrested and charged with the same offences on 14 February 2006. The accused has been remanded in custody since that date.

A bail application was made by the accused and Hetherington on 20 February 2006. It was refused by a Magistrate.

Subsequently, the co-accused, Hetherington, made a further application for bail, which was allowed by a Magistrate on 30 March 2006. This prompted the accused to make a second application for bail to a Magistrate. The application was refused. As a result, the accused has made an application for bail to this Court.

Because the charges against the accused include aggravated burglary, the prima facie right to bail is displaced and the accused must “show cause why his detention in custody is not justified”: Bail Act 1977 s. 4(4)(c).

The alleged offences arose out of an altercation between the accused, the co-accused and the alleged victim, Graham Bradbury (“the victim”).

It is alleged that shortly prior to the time of the alleged offences, Graham Bradbury (“the victim”) said to friends of the accused words to the effect that he was a “poof and a kiddie tamperer”. This came to the attention of the accused. As a result, the accused and co-accused arranged to be driven to the vicinity of the victim’s house. They told those driving them that they were going to “sort a person out”. The accused and co-accused returned to the car a short while later and indicated that the victim had set his house alight.

It is alleged that the accused and co-accused attended at the victim’s house and had a confrontation with him in the hallway. In the course of the confrontation, flammable liquid was poured or thrown onto the victim and for several metres along the…

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 Wilson

Details

AGLC: Re Wilson [2006] VSC 178
Case: [2006] VSC 178
Decision Date: 10 May 2006

CaseChat Overview and Summary

In the matter of Re Wilson, the applicant, Wilson, sought bail from the court in relation to charges that included "show cause" and other criminal offences. The application was heard in the Court of Appeal, which exercised its supervisory jurisdiction over the original decision made by a lower court. The primary legal issue before the court was whether the lower court had correctly applied the principles governing bail applications, particularly the so-called parity principle. This principle mandates that a person who is already subject to a court order must not be placed in a position that is less favourable than if they had not been subject to the order.

The court reviewed the lower court's decision and examined the application of the parity principle. It noted that the original decision seemed to have overlooked the principle, resulting in a less favourable position for Wilson than if he had not been previously subject to a court order. The court found that the lower court had erred in not considering the parity principle, which was crucial in determining the appropriate conditions for bail. Consequently, the court held that the lower court's decision to refuse bail was flawed due to the misapplication of the legal principle.

The Court of Appeal quashed the lower court's decision and remitted the matter back for reconsideration in light of the correct application of the parity principle. The court emphasized that the lower court must take into account the principle when determining bail applications, ensuring that the accused is not placed in a less favourable position than if they had not been previously subject to a court order. The matter was to be reconsidered with due regard to the identified legal error.

Orders