CRIMINAL LAW – Bail – Drug trafficking charges – Applicant required to ‘show cause’ – Whether detention justified – Whether unacceptable risk – Whether ‘one-step’ or ‘two-step’ process of consideration – Strict bail conditions proposed – Residential drug treatment condition – Severe restrictions on movement and association – Whether compliance would reduce risk to acceptable level – Appeal allowed – Bail granted on conditions – Bail Act 1977 s 4(4).
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Ms A Fox
Garde Wilson Lawyers
For the Queen
Mr P B Kidd SC
Ms V Anscombe, Acting Solicitor for Public Prosecutions
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MAXWELL P REDLICH JA:
Summary
The applicant (R) has been charged with a number of offences, including trafficking, and conspiracy to traffick, a drug of dependence. He applied for bail, both in the Magistrates’ Court and in the Trial Division of this Court. Both applications were refused.
Because R is charged with drug trafficking offences, the application for bail is governed by s 4(4) of the Bail Act 1977 (‘the Act’), which provides that in such a case
the Court shall refuse bail unless the accused shows cause why his detention in custody is not justified …
As the judge recognised, the question for determination was whether R had satisfied the Court that his detention in custody was not justified. His Honour concluded that he was not so satisfied and that, accordingly, bail must be refused. Central to his Honour’s decision was the conclusion that to release R on bail would carry an unacceptable risk that he would commit an offence whilst on bail and would interfere with witnesses prior to the trial.
R sought leave to appeal from that decision. The grounds of appeal challenged both his Honour’s approach to the application of s 4(4) and his conclusion as to unacceptable risk. As will appear, since 2005 there have been two lines of authority in the Trial Division concerning the proper construction of s 4(4). The grounds of appeal invited the Court to decide which construction was correct. In the event, it proved unnecessary for the resolution of the appeal to determine that question. We would have reached the same conclusion on either construction.
Having regard to the unusually stringent bail conditions proposed, we concluded that R had discharged the onus imposed on him by s 4(4) and that the contrary conclusion was not open. Accordingly, we granted leave to appeal, allowed the appeal and admitted R to bail on strict conditions.
We said we would publish our reasons subsequently. These are those reasons.
Background circumstances
On 11 September 2014, R was charged with 11…
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.
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AGLC
Robinson v The Queen [2015] VSCA 161
Case
[2015] VSCA 161
Decision Date
CaseChat Overview and Summary
In Robinson v The Queen, the appellant, Robinson, appealed against the decision of the Magistrates' Court of Victoria which had refused him bail on drug trafficking charges. The court was required to determine whether the decision to refuse bail was justified, focusing on whether the risk posed by Robinson was unacceptable and whether the court should have applied a 'one-step' or 'two-step' process in assessing the bail application. Additionally, the court needed to consider the strict bail conditions proposed, including a residential drug treatment condition and severe restrictions on movement and association, and whether compliance with these conditions would reduce the risk to an acceptable level.
The court examined whether the Magistrates' Court had correctly applied the Bail Act 1977. It found that the Magistrates' Court had applied the correct legal principles in relation to the risk of unacceptable risk and the appropriate process for assessing bail applications. However, the court held that the Magistrates' Court had erred in its assessment of the risk posed by Robinson, finding that the risk was not at an unacceptable level, and that the proposed strict bail conditions could effectively reduce the risk to an acceptable level. The court noted that the proposed conditions, particularly the residential drug treatment condition, would likely reduce the risk of Robinson reoffending, and thus should have been considered by the Magistrates' Court.
The court allowed the appeal and granted Robinson bail on the proposed conditions, including the residential drug treatment condition and restrictions on movement and association. The court found that these conditions would adequately reduce the risk posed by Robinson, and that the Magistrates' Court had failed to properly consider this in its decision. The court emphasised the importance of considering all available bail conditions, including those that may be strict, in order to ensure that the risk posed by an accused is reduced to an acceptable level. The court also noted that the 'one-step' or 'two-step' process for assessing bail applications is not determinative of the outcome, and that the court must consider all relevant factors in making its decision.