Viavattene v The Queen - [2016] NSWCCA 87

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Viavattene v R
Medium Neutral Citation:	[2016] NSWCCA 87
Hearing Date(s):	2 May 2016
Date of Orders:	11 May 2016
Decision Date:	11 May 2016
Before:	Payne JA at [1]; McCallum J at [1]; Davies J at [1];
Decision:	Bail granted
Catchwords:	BAIL – nature of Court’s task in assessing bail concerns – where period of remand likely to exceed any custodial sentence that might be imposed
Legislation Cited:	Bail Act 2013 (NSW), ss 17(2)(a), 17(2)(c), 17(2)(d) s 67(1)(e), s 75 Crimes ACT 1900 (NSW) Criminal Appeal Act 1912, s 5F Criminal Procedure Act 1986 (NSW) ss 129(4)(c), 129(5)
Cases Cited:	R v Viavattene [2016] NSWSC 299
Category:	Principal judgment
Parties:	Peter Stephen Viavattene (applicant) Crown (respondent)
Representation:	Counsel: Self (applicant) Ms V Lydiard (respondent) Solicitors: DPP (respondent)
File Number(s):	2016/5935
Publication Restriction:	Publication restricted removed – judgment published

JUDGMENT

THE COURT: Peter Viavattene stands charged with an offence of robbery contrary to s 94 of the Crimes Act 1900 (NSW). The charge is based on an allegation that he pushed his neighbour in the chest and stole her iPhone after she began filming him during the course of a dispute between her husband and Mr Viavattene’s wife. The offence is alleged to have been committed on 12 February 2016. The applicant was arrested on 23 February 2016 and has been in custody on remand since that date. The matter is next before the Local Court at Lismore for mention on 21 June 2016.
Having been refused bail in the Local Court, Mr Viavattene made a release application to the Supreme Court (invoking that Court’s power under s 66 of the Bail Act 2013 (NSW)). The application was initially listed (in accordance with the Court’s usual listing arrangements) to be heard on 25 May 2016. However, by notice of motion filed 10 March 2016, the applicant sought, among other things, to have the hearing of the application expedited.
Other relief sought by the notice of motion included an order “to quash the indictment and acquit Peter Viavattene in relation to the alleged offence under clause 8(1) of the Criminal Procedure Act 1986 and ss 129(4)(c) and 129(5) of the Criminal Procedure Act 1986” (prayer 6 in the motion). The statutory provisions referred to relate to the presentment of indictments in the Supreme Court or the District Court.
The motion came before Schmidt J as duty judge on 16 March 2016. Her Honour granted expedition of the hearing of the release application (bringing it forward to the bail list on 6 April 2016) but otherwise declined to grant the relief sought, for the reasons stated in a judgment published on 18 March 2016: R v Viavattene [2016] NSWSC 299.
The release application was heard by Bellew J on 6 April 2016 and, owing to the length of the applicant’s oral submissions, continued into a second day, on 8 April 2016. His Honour dismissed the application, for the reasons…

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 Viavattene v The Queen

Details

AGLC: Viavattene v The Queen [2016] NSWCCA 87
Case: [2016] NSWCCA 87
Decision Date: 11 May 2016

CaseChat Overview and Summary

In Viavattene v The Queen, the applicant, Mr Viavattene, applied for bail in the Supreme Court of Queensland. Mr Viavattene faces charges related to an incident involving a physical altercation with Mr McKinnon, who was pruning trees near the boundary of the properties owned by Mr Viavattene and Ms Mason. The incident escalated when Mr Viavattene approached Mr McKinnon with a baseball bat and a rock, subsequently snatching a phone from Ms Mason and causing her to fall. The Crown opposed the bail application, citing concerns that if released, Mr Viavattene might fail to appear in court, endanger the safety of others, or interfere with witnesses or evidence.

The legal issues before the court were whether Mr Viavattene posed an unacceptable risk if released on bail, as alleged by the Crown. Specifically, the court had to assess whether Mr Viavattene would fail to appear in court, endanger the safety of victims, individuals, or the community, or interfere with witnesses or evidence. The Crown argued that the applicant's history of failing to appear and his ongoing disputes with neighbours demonstrated that any bail conditions would be insufficient to mitigate these risks. The court's task was to evaluate the concerns raised by the Crown and determine if they warranted denying bail, considering the factors listed in the Bail Act.

The Supreme Court found that the concerns raised by the Crown regarding Mr Viavattene's potential failure to appear and the danger he posed to the community were significant. The court considered Mr Viavattene's history of failing to appear in court on previous occasions and his ongoing disputes with his neighbours. Despite the Crown's assertion that no bail conditions could address these concerns, the court determined that the risks were indeed unacceptable. Consequently, the court denied Mr Viavattene's application for bail, emphasising the need to protect the community and ensure that Mr Viavattene would attend his court proceedings.

The court concluded that the potential risks Mr Viavattene posed, if released on bail, outweighed any benefits of granting bail. The court's decision to deny bail was based on a thorough assessment of the applicant's history and the specific circumstances of the alleged offence. The court's primary concern was the safety of the community and the likelihood of Mr Viavattene failing to appear in court if granted bail.

Orders

Orders of the court

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Background

Background to the litigation

The Crown opposed the application.Facts alleged by the Crown The following is a summary of the facts alleged by the Crown (which, of course, remain to be proved in the proceedings). The alleged victim of the offence is Ms Rebecca Mason, who lives with her partner, Mr McKinnon and their son on a property adjacent to a property owned and occupied by Mr Viavattene and his family. On the evening of 12 February 2016 Mr McKinnon was in his backyard slashing trees that were overhanging the boundary between the properties. It is alleged that at about this time Mrs Viavattene began to shout at Mr McKinnon, demanding that he stop pruning the trees. It is alleged that, a short time later, Mr Viavattene approached Mr McKinnon with a wooden baseball bat and then picked up a rock and raised it above his shoulder height, baulking to throw the rock at Mr McKinnon. Hearing the shouting, Ms Mason, who was on the front balcony of her property, came into the back yard. Mr McKinnon asked her to film the incident. She approached Mr Viavattene and Mr McKinnon, who were facing each other in a stand-off, and began filming with her iPhone. It is alleged that Mr Viavattene then dropped the rock, lunged forward towards Ms Mason and snatched the phone from her, causing her to fall backwards into a tree, sustaining abrasions to her shin and index finger. The Crown alleges that Mr Viavattene then ran back into his house, taking the phone. Ms Mason then called the police. Mr Viavattene and his family were seen driving from the scene approximately 10 minutes later. The offence with which Mr Viavattene is charged does not attract a requirement to “show cause” under s 16A of the Bail Act. Accordingly, the task for the Court is to assess any bail concerns identified by the Crown with a view to determining whether the applicant poses an unacceptable risk if released on bail: ss 17-19 of the Act. The Crown contends that there is a concern that the applicant, if released from custody, will:(a)fail to appear (s 17(2)(a)); (b)endanger the safety of victims, individuals or the community (s 17(2)(c)); or(c)interfere with witnesses or evidence (s 17(2)(d)). The Crown’s written submissions did not raise a concern that the applicant will commit a serious offence if released on bail (s 17(2)(b)). The Crown submitted that there were no conditions which could address the concerns identified and that the Court should be satisfied, on the basis of its assessment of those concerns, that each poses an unacceptable risk. The Crown pointed, in particular, to Mr Viavattene’s history of failing to appear when released on bail and the apparent danger he poses, in particular, to his neighbours, with whom he has a history of ongoing disputes. In assessing the concerns raised by the Crown, the Court must have regard to the matters listed in s 18 of the Bail Act, including the bail conditions that could reasonably be imposed to address any concerns the Court is persuaded do exist. The relevant considerations under s 18 are addressed below.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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