Assessment 2 - Bail Application Oral PDF

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good starter however more detail needs to be added...

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Good morning your Honour, I, xxx xxxx am appearing on behalf of the applicant here before you. We are here to make an application for bail regarding four offences my client has been charged with. Ms Morris was arrested this morning at 10:30 am and charged with the following four offences.

1.

‘Common assault’ - section 23 of the Summary Offences Act 1966 (Vic).

2.

‘Causing injury intentionally or recklessly’ - section 18 of the Crimes Act 1958 (Vic).

3.

‘Persons Found Drunk’ – section 13 of the Summary Offences Act 1966 (Vic). And

4.

‘Wilful destruction, damage etc. of property – section 9 of the Summary Offences Act

1966 (Vic).

The arresting officer set forth two witnesses to the incident that occurred this morning where Ms Kendall, the victim has since required stitches to her forehead, along with bruises and abrasions.

In accordance with section 4 of the Bail Act 1977 (Vic) (‘BA’) ‘any person accused of an offence and being held in custody in relation to that offence has a presumption prima facie entitlement to bail...’. It is conceded that given the nature of this charge of which the offence ‘causing serious injury recklessly, does not fit into a Schedule 1 or Schedule 2 offence. Your Honour, under section 4E of the Bail Act, the charges laid against my client fall into the ‘all other offences’. My client is also clear of terrorist activity under section 8AA of the Bail Act. The court will have to take into consideration “surrounding circumstances” under section 4E(3)(a) of the Bail Act. Your honour, I’d also like to take the opportunity to outline that the bail maker holds the liberty to impose conditions under section 5AAA (1) of the Bail Act and the ability to impose any other condition under section 5AAA (2) & (4) of the Bail Act.

Your Honour, I’d like to move to case law. It is shown in R v Light that the presumption of bail is a liberty and one of the most fundamental civil rights that should not be waived without strong cause. Beljajev v DDP addresses that the prosecution holds the burden of proof in establishing unacceptable risk and Hall v Pangemanan highlights the high threshold for determining unacceptable risks.

The provisions that account for the “surrounding circumstances” under section 3AAA of the Bail Act must be taken into consideration, your honour. I’d like to start off by stating that my

client is otherwise law-abiding with a clean criminal record with no past convictions. My client is not and has never been a terrorist or participated in terrorist-related activities. Ms Morris is in a stable relationship with their partner of 2 years, Paulina and is the breadwinner between the two. My client is a family-oriented individual who takes pride in their loved ones, and it just so happens that the victim, Ms Kendall, threatened Paulina earlier today. My client and their partner went out for drinks last night in celebration of Ms Morris’s work promotion. They enjoyed their night peacefully until Ms Kendall shouted some homophobic slurs at them earlier this morning, provoking my client whilst in an intoxicated state. Ms Kendall was getting too close to Pauline as seen in the CCTV footage provided by the local 7/11 which caught most of the incident and my client felt that their family was getting threatened. I also ask that you acknowledge that my client does not fall into section 4E of the Bail Act as an “Unacceptable Risk”. In accordance with the BA section 4E(1)(a) the concern of the prosecution with respect to both the surrounding circumstances and unacceptable risk test can be put to rest.

Your Honour, the foundation that the applicant is seeking bail is based on both statute and common law. My client is entitled to bail under section 4 of the Bail Act and not granting such would be such an injustice for Ms Morris. The prosecution intends to protect society against all danger and criminals however my client is far from being any danger to society and is highly unlikely to re-offend, Your Honour. My client at the time of the incident acted with the intention of protecting their family against any threat and has the right to the presumption of innocence until proven guilty for the charges filed against them by section 25(1) of the Charter of Human Rights and Responsibility Act 2006 (Vic).

In terms of what the prosecution has stated, Your Honour, in regard to the wilful destruction of property, there is not yet proof that my client is responsible for the damage to the local café’s outside furniture as it is not in the frame of the CCTV footage provided and the outside camera wired to the café is out of service, meaning it is a blind spot that is being used against my client. Ms Morris stands on the ground of the presumption of innocence here. The prosecution brought to light that Ms Morris has not come into contact with her parents for 2 years, however, Your Honour, that has nothing to do with my client’s character rather it has to do with their relationship with Paulina and has nothing to do with this case. It was also brought to light that my client has several childhood friends with local gang crime associations however, my client has not come into contact with these people since their teens

and I find it unreasonable that such past relations were brought to light. Ms Morris is a social media influencer who posts inspirational messages and videos on self-defence for vulnerable individuals to help defend themselves in moments of danger. My client has never used their Zen Do Kai skills for anything, but self-defence and their skills are no threat to society. Lastly, the prosecution mentioned my client’s commercial flight license. Ms Morris is not a flight risk and will not attempt to flee the country whilst on bail.

I ask that you consider the following bail conditions: 1. Ms Morris be put on an airport watchlist and surrender their commercial pilot’s licence and passport. 2. Contact with gang related childhood friends be prohibited 3. Cease social media usage whilst on bail 4. Stay sober and attend Alcoholics Anonymous meetings 5. Not come into contact with any of the witnesses or the victim 6. Attend an anger management program 7. And “any other condition” that the bail decision-maker considers appropriate in accordance with section 5AAA(4) of the Bail Act.

Given the nature of the offence, considering the surrounding circumstances and that there have not been proven any unacceptable risks, there is no threat to the community if released on bail.

Thank you....