Re Wishart - [2018] VSC 41

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0007

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for bail by RONALD WISHART

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2018
DATE OF JUDGMENT:	12 February 2018
CASE MAY BE CITED AS:	Re Wishart
MEDIUM NEUTRAL CITATION:	[2018] VSC 41

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CRIMINAL LAW – Bail – Appeal against refusal – Possession and manufacture of firearms – Assault and threats to kill – Breach of family violence intervention order – Whether applicant shows cause – Whether conditions ameliorate unacceptable risk – Bail refused – Bail Act 1977 (Vic) s 4(4).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Marshall	Stephen Peterson Lawyers
For the Respondent	Ms J Malabobic	Victoria Police

HIS HONOUR:

Introduction

On 2 March 2017, the applicant Ronald Wishart was arrested and charged by police with offences relating to a family violence incident alleged to have occurred the previous evening. Further, he was charged with the possession and manufacture of a number of firearms over the months leading up to the incident. The complainant in the physical violence allegations is his wife, Ms Brodie Wishart.

Procedural history of the matter

At the time of the alleged offending, the applicant was the subject of a family violence intervention order protecting the complainant and their young son, Callum. The original intervention order was granted on 12 April 2016, and was issued due to a family violence incident having occurred between the applicant and the complainant.

The Intervention Order was later varied on 23 February 2017 to permit the applicant to contact the complainant and be within 200 metres of the complainant’s home, as long as she agreed. Following that variation being made, the complainant moved into the applicant’s house in Buln Buln in an attempt to revive their relationship. It is alleged that the incidents giving rise to this bail application occurred in the family home.

The applicant applied to the Latrobe Valley Magistrates’ Court for bail in respect of the charges now before the Court. That application was heard and refused on 19 September 2017. He now applies to this Court for an order granting bail.

Charges before the Court

In summary form the charges now before the Court are that the applicant:

(1) recklessly caused injury to Brodie Wishart;

(2) unlawfully assaulted Brodie Wishart;

(3) threatened to kill Brodie Wishart, intending that she would fear that the threat would be carried out, or he was reckless as to whether or not she would fear that it would be carried out;

(4) made a threat to Brodie Wishart to kill other persons, namely, her parents;

(5) on a separate occasion threatened to kill David Ewen;

(6) contravened a family intervention order by assaulting and threatening to kill the protected person;

(7) assaulted and threatened the protected person;

(8) being a prohibited person possessed 11 firearms;

(9) possessed more than three firearms…

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 Wishart

Details

AGLC: Re Wishart [2018] VSC 41
Case: [2018] VSC 41
Decision Date: 12 February 2018

CaseChat Overview and Summary

The matter of Re Wishart involved an appeal by the applicant against the refusal of bail by the County Court of Victoria. The applicant, Wishart, faced serious charges, including the possession and manufacture of firearms, assault, threats to kill, and a breach of a family violence intervention order. The appeal was heard in the Supreme Court of Victoria, where the primary focus was on the merits of granting bail under the Bail Act 1977 (Vic). The court was tasked with determining whether Wishart had demonstrated sufficient cause to warrant bail and if the proposed bail conditions could sufficiently address any unacceptable risk to the community.

The legal issues central to the appeal revolved around the interpretation of the Bail Act 1977 (Vic) and the principles guiding the grant of bail in circumstances where serious offences have been alleged. The court had to assess Wishart’s likelihood of attending court, the seriousness of the offences, the circumstances of the alleged offences, and the protection of the community. Additionally, the court examined the adequacy of the proposed bail conditions in mitigating any potential risks posed by Wishart's release.

In its reasoning, the Supreme Court acknowledged the gravity of the charges against Wishart, particularly the possession and manufacture of firearms, and the history of family violence. The court concluded that the nature of the offences and the potential risk to the community were substantial, and the evidence did not establish sufficient cause for bail. Furthermore, the court found that even with stringent bail conditions, the unacceptable risk to the community could not be sufficiently ameliorated. The Supreme Court upheld the County Court's decision, affirming that bail should be refused based on the factors considered under section 4(4) of the Bail Act 1977 (Vic).

The final orders of the court were to dismiss the appeal, thereby maintaining the County Court's decision to refuse bail. The Supreme Court did not impose any further conditions beyond those already considered and rejected by the County Court, thereby upholding the County Court's assessment of the risks and the need to protect the community.

Orders