CRIMINAL LAW – Bail – Appeal – Schedule 2 offences – Appellant required to show compelling reason justifying grant of bail – Judge concluded no compelling reason established – Judge satisfied unacceptable risk established by prosecution – Whether judge’s decision open – Whether judge erred – No error established – Decision open – Appeal dismissed.
CRIMINAL LAW – Bail – Compelling reason – Unacceptable risk – Surrounding circumstances – Nature and seriousness of alleged offending – Length of time accused likely to spend in custody – Likely sentence to be imposed – Bail Act 1977, ss 3AAA, 4AA, 4C, 4D and 4E.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr D P Sheales
Tait Lawyers
For the Respondent
Ms H Spowart
Legal and Prosecutions Specialists Branch, Victoria Police
BEACH JA
KAYE JA ASHLEY JA:
On 24 May 2019, the appellant was arrested and taken into custody. The following day, he was charged with 32 offences arising out of incidents alleged to have occurred on 7, 12 and 24 May. Charges 1–18 are alleged to have occurred on 24 May, charges 19–22 on 7 May, and charges 23–32 on 12 May. The appellant has been in custody since his arrest.
The offences with which the appellant was charged were intentionally causing injury (two charges), recklessly causing injury (two charges), unlawful assault (five charges), reckless conduct endangering life (three charges), reckless conduct endangering serious injury, criminal damage, contravening a family violence intervention order (13 charges), persistent contravention of a family violence order, possessing a drug of dependence (methylamphetamine), using a drug of dependence (methylamphetamine), making a threat to kill and recklessly causing serious injury. The complainants in respect of these charges are the appellant’s wife and his two stepchildren.
On 27 June 2019, the appellant was charged with contravening an undertaking given to the Ballarat Magistrates’ Court on 3 July 2018 pursuant to s 83AC of the Sentencing Act 1991. The contravention of the undertaking is alleged to have occurred on 3 December 2018.
On 28 June 2019, the appellant applied for bail in the Ballarat Magistrates’ Court. Bail was refused.
On 15 August 2019, the appellant applied for bail before a judge of the Trial Division. On 20 August 2019, the judge refused that application.[1]
The appellant now appeals against the judge’s refusal to grant him bail. The appellant’s grounds of appeal are as follows:
(1)[T]he judge erred in finding that there were no compelling reasons to justify granting [the appellant] bail.
(2)[T]he judge erred when he failed to take into account, when considering whether the appellant had established a compelling reason, a surrounding circumstance that he…
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
Rodgers v The Queen [2019] VSCA 214
Case
[2019] VSCA 214
Decision Date
CaseChat Overview and Summary
In the case of Rodgers v The Queen, the appellant was convicted of Schedule 2 offences and appealed against the decision of the trial judge to deny bail. The appeal was heard in the Court of Appeal, which needed to determine whether the trial judge erred in concluding that no compelling reason had been established to justify the grant of bail, and if so, whether the decision was open to the judge. The central issues before the court were whether the trial judge correctly assessed the compelling reason and unacceptable risk criteria under the Bail Act 1977 and whether these assessments were reasonable in the context of the appellant’s alleged offending and the surrounding circumstances.
The Court of Appeal examined the trial judge's determination that no compelling reason was established to grant bail. The court found that the trial judge's conclusion was open, taking into account the nature and seriousness of the alleged offences, the risk of flight, and the potential impact on the community. The court held that the trial judge had properly considered the relevant factors, including the appellant’s criminal history and the potential sentence, and was satisfied that the unacceptable risk, as defined by the prosecution, was established. The Court of Appeal concluded that the trial judge did not err in their assessment and that the decision to deny bail was well within the judge’s discretion.
Given the thorough consideration of the compelling reason and unacceptable risk criteria, the Court of Appeal dismissed the appeal. The court affirmed the trial judge's decision, finding that it was open to the judge and that no error was established in the process of denying bail. Consequently, the appeal was unsuccessful, and the original decision stood.