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IN THE MAGISTRATES’ COURT IN THE STATE OF VICTORIA AT MELBOURNE Court Reference: ABC123 IN THE MATTER OF: John Smith Applicant and Victoria Police Respondent

SUBMISSIONS - APPLICATION FOR BAIL

Background 1.

The applicant is aged 30. Based in the city of Melbourne.

2.

On the 12th of October 2019, it was alleged that the applicant named Mr Smith had committed an assault on the victim named Mr Jones. The police claim that three witnesses had seen Smith attack Jones. Jones was attacked by a blow in the head with a closed fist (punch) and requires a stitch to his forehead as well as medical attention.

3.

On the 13th of October 2019, Smith was arrested by appointment. A charge had been made against smith under Section 17 of the Crimes Act 19581 which is the crime of Recklessly Causing Serious Injury. Smith was remanded into custody and on the 15th of October 2019 he was placed before the court.

Statutory Provisions 4.

The applicant is charged with ‘Recklessly Causing Serious Injury’ under Section 172 of the Crimes Act 19583. This is classified as an indictable offence which can be heard summarily in accordance with the Criminal Procedure Act 2009 (schedule 2)4. This offence is defined as ‘a person who, without lawful excuse causes a serious injury to

1 Crimes Act (1958) (Vic) s17 2 Crimes Act (1958) (Vic) s17 3 Crimes Act (1958) (Vic) s17 4 Criminal Procedure Act 2009 sch 2 s 4

another is guilty of an indictable offence’5. According to section 176 the maximum penalty that can be imposed or this offence is 15 years level 4 imprisonment7. According to the Sentencing Act 19918, limits the Magistrates Court to impose the maximum sentence and is limited to two years for a single offence. 5.

Under section 4 of the Bail Act 1977, the applicant is permissible to be granted bail. The concerns that arise is applicant is presented as an ‘unacceptable risk’9 under section 4 of the Bail Act 1977. According to subsection 1 of section 4 is a list consisting of factors of whether a bail can be granted or not by the decision maker. The decision maker must consider any relevant circumstances according to section 3AAA as well as determine conditions to lessen or mitigate any risks10. The factors include the unacceptable risks if released on bail: i)

Endanger the safety or welfare of any person

ii)

Commit an offence on bail

iii)

Interfere with a witness or otherwise or cause obstruction to justice

iv)

Fail to surrender in custody in accordance to bail conditions11

Continuing from subsection 2, the prosecution has the burden of proving that a risk is prominent and that it is in fact an ‘unacceptable risk’. 6.

The Charter of Human Rights and Responsibilities Act 2006 must also be considered when determining the outcome of the bail application. Sections such as 21 that promote the right to liberty and security of a person12. The subsection 5, states that a person who is arrested or detained on a criminal charge must be brought before the court promptly and has the right to be brought to trial without unreasonable delay. If the above is not complied with then they must be released13. Relevant Cases

7.

Re Johnston (no2) [2018] VSC 80314

5 Crimes Act (1958) (Vic) s17 6 Sentencing Act (1991) (Vic) s 113 7 Bail Act (1977) (Vic) s 4 8 Bail Act (1977) (Vic) s 4E (1) 9 Bail Act (1977) (Vic) s 4E (2) 10 Bail Act (1977) (Vic) s 4E (3) 11 Charter of Human Rights and Responsibilities Act 2006 (Vic) 12 Re Johnstone (No2) [2018] VSC 803 13 Charter of Human Rights and Responsibilities Act 2006 (Vic) 14 Re Magee [2009] VSC 384 [20]

8.

Re Magee [2009] VSC 38415

Arguments Against Bail 10.

The Prosecution state that there is no confusion or issue of the elements of identity and causation due to there being three witnesses that saw the assault take place and saw Smith strike Jones. Prosecution also state that the element of ‘serious injury’ is confirmed as the victim Jones required stitches and medical treatment as well as being traumatised after the assault.

11.

Continuing on from that Prosecution also believe that the three witnesses are at risk of their welfare as they are known to the Mr Smith and his associated. Prosecution also believe as a result of this that Smith could ‘obstruct the course of justice’16 as well as portray ‘unacceptable risk’ by committing more offences17 whilst on bail if his bail application was to be granted. Interfering of the course of justice would also occur if released from custody because threats were made to the witnesses from Mr Smith’s associates if they were to submit any evidence against Smith.

12.

The prosecution claim that Mr Smith has a good friendship with the leader of the local crime gang suggesting the applicant could pose a threat to ‘endanger the safety or welfare of any person18’. Police have also revealed due to the applicant Smiths associated links, he has not been in contact with his family for the past five years suggesting that he has no strong bonds or connection with friends and family in the community which can be seen as a red flag.

13.

Finally, it is known that Mr Smith has a commercial pilot licence as well as earning an income of 100,000 dollars. The prosecution believes that Mr Smith can be considered a ‘flight risk’ as there is a potential means of escaping the country. Despite this offence being Smith’s first, but prosecutions say it is not a worth the risk as the offence committed is a serious offence which carries the maximum penalty of 15 years imprisonment.

Rebuttal 13.

Undoubtedly Mr Smith accepts his association with the leader of the crime gang, but he says he does not participate in the gang activities or promote the actions of the

15 Bail Act (1977) (Vic) s 4E(1) (i) 16 Bail Act (1977) (Vic) s 4E(1) (ii) 17 Bail Act (1977) (Vic) s 4E(1) (iii) 18 Bail Act (1977) (Vic) s 4E(1) (iv)

leader. The threats made by Smith’s associates to the witnesses were not known by Mr smith at all or done without his knowledge. In relation to his relationship with his parents have nothing to do with his associates and his reason for no contact is another personal emotional issue. 14.

Mr Smith is in fact worried to be deprived of justice as he might be obstructed himself as Smith has no criminal record in the past. However, the witnesses themselves all three of them have a criminal record making them not credible and reliable possible make them not eligible to proceed for the contested hearing.

15.

The point being raised that Mr Smith is a ‘flight risk’ is invalid as Mr Smith has not utilised his commercial licence in years and has been working in the security field. Mr Smith also has a defence against the charge and wants to bring that before the court to clear his name. Mr Smith has also cooperated with the arrest by appointment and is currently in a long-term relationship with his partner. Therefore, suggesting that ‘flight risk’ is not option for Mr Smith or a risk of concern.

16.

It has been established that all elements of the charge have been established. I submit on behalf of my applicant Mr Smith that he had a lawful excuse as he was acting in self-defence he did in fact hit the victim in defence from the other heavy built men that were also at the scene with the victim and threats were made to harm him and his childhood friend. So, in defence Smith had made this move and fled the scene when the other men were about to approach him.

Summary

16.

I propose that the Prosecution has not satisfactorily carried out the burden in subsection (1)(a) of section 419. I propose that section 4(1) and (3) to be considered with the relevant circumstances as stated in the section 3AAA. I would like to suggest that the remand in custody of Mr Smith is unnecessary20. Due to the Smith raising self-defence and had no prior convictions that make it prominent he is in fact not a risk to the community. Instead the police should have gone through with utilising summons and rather charged with the highest charge and further been bailed this would have been more appropriate because as evident that Mr Smith had no criminal history.

17.

Your honour, I refer you to the case of Re Johnstone [2018] VSC 803 whereby the ‘compelling reasons’ were displayed that there was a ‘real chance’ that any term of

19 Bail Act (1977) (Vic) s 4E(1) (a) 20 Bail Act (1977) (Vic) s 4E(1) and (3)

imprisonment for the applicant of this case was to be less than the time he had served or was likely to be served whilst on remand 21. In the case of Magee [2009] VSC 384 the judge of the case decided that The applicant of this case was more likely of to serve a larger time on remand in comparison to if he was to be convicted which was vital in determining whether he had ‘shown cause’. I state that these cases showing the elements of ‘compelling reason’ and ‘show cause’ are similar to the circumstances of the Mr Smiths circumstances. . Therefore, if Smith were to receive a term it would be less than the time served on remand waiting for a contestant hearing. 18.

In summary, the prosecution had not satisfactorily proved the burden of ‘unacceptable risk’. Ultimately, I endeavour that the applicant Mr Smith to be granted bail. If the court has any concerns or believe that there might be a risk involved than ultimately stricter bail conditions should be delivered and the potential risks could be mitigated in accordance with subsection (3) of section 4 of the Bail Act 197722. As advised by the applicant Mr Smith that he is prepared to have bail restrictions and give up his Commercial and Passport Licence to be granted bail.

Bibliography

A CASES 21 Re Johnstone (no2) [2018] VSC 803,15 22 Bail Act (1977) (Vic) s 4E (3)

Re Johnston (No2) [2019] VSC 803 Re Magee [2019] VSC 384

B LEGISLATION Charter of Human Rights and Responsibilities Act 2006 (Vic) Crimes Act (1958) (Vic) Criminal Procedure Act 2009 (Vic) Bail Act 1977 (Vic) Sentencing Act 1991 (Vic)...