Criminal Procedure - Bail Apllication PDF

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IN THE MAGISTRATES’ COURT IN THE STATE OF VICTORIA AT MELBOURNE Court Reference: ABC123 IN THE MATTER OF: Applicant

John Smith And

Respondent

Victoria Police

APPLICATION FOR BAIL

Background 1.

This bail application refers to Mr. John Smith to be held later today at the Magistrate Court.

2.

The applicant has been charged with ‘Causing serious injury recklessly’1 and ‘Causing injury intentionally or recklessly’2 in pursuant to sections 17 and 18 of the Crimes act 1958(Vic)3

3.

Mr John Smith is of 30 years of age and born and raised in Melbourne. He has a partner of 5 years and 2 year old son name Sam.

4.

Mr John Smith was staying in the same residence for past 10 years and has no criminal record nor charged with any other offences.

5.

Mr John Smith works with a security company and earns $100,000 per annum as a salary. Smith has his commercial pilot license and only earning member in his family. His partner lost her job due to Covid 19 crisis.

6.

Mr Smith was remanded in the custody for above charges last night and found it is a terrifying experience.

THE POLICE BREIF 8

In accordance with section BA s 44 ‘any person accused of an offence and being held in custody in relation to that offence has a presumption of prima facie entitlement to bail5.’

SATUTORY PROVISIONS 9 In pursuant to Bail Act the given nature of this charge ‘Causing injury intentionally or recklessly6’ does not fit into Schedule 1 or Schedule 2 Offences.

10 According to BA 4E7, this charge fits into ‘all other offences’.

11 In accordance with BA s 8AA8, Mr John Smith has no terrorism record or risk applies to him..

12 The prosecution has denied the Bail, thus the onus remains on the prosecution under BA s 4E (2)9 to prove the unacceptable risk. BA S 4E (2)10 states that ‘The prosecution bears the burden of satisfying the Bail decision maker11’ that the risk is unacceptable.

13 The Bail decision maker must consider whether a risk mentioned in subsection BA s 4E(1)(a)12 is an unacceptable risk, the bail decision maker must take into account the ‘surrounding circumstances13’ and consider whether there are any conditions of Bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.

14 The ‘surrounding circumstances’ are explained under BA s 3AAA 14, according BA s 3AAA15, the bail decision maker must consider ‘surrounding circumstances’ and ‘conditions that might be imposed to mitigate the risk16.

15 Secondly the Bail decision maker must consider sufficient information in relation to ‘unacceptable Risk17’ under BA s 8A18 .In this event, if the Bail decision maker is satisfied, bail may be granted.

16 The Bail decision maker has a liberty to impose conditions under BA s 5AAA (1)19Under s BA 5AAA (2)20 and (4)21 Bail decision maker may impose any other reasonable conditions.

CASE AUTHORITIES 17 Presumption of Bail

R v Light22 Liberty is regarded as the most fundamental Civil Right and it must not be curtailed without very strong cause. Rejection of bail without strong reason is considered as a relinquishment of human fundamental Civil Right.

18

THE BURDEN OF PROOF LIES IN THE PROSECUTION

Beljajev v DPP1622

In pursuant to this case, the burden of establishing unacceptable risk relies on the prosecution.

19

UNACCEPTABLE RISK

Hall v Pangemanan23 (i)The case addresses that the need for high threshold in determining the ‘ unacceptable risk’ in serious crimes

20

BAIL CONDITIONS

woods v Dpp24 This case emphasises that how bail conditions can be used to mitigate the safety and welfare of the surrounding community.

21

BAIL GRANTED

Re Neskovski225 It is required to show compelling reason for Scheduled offences that justifies grant a Bail.

SURROUNDING CIRCUMSTANCES 22 In accordance with BA s 3AAA (1)26 the ‘surrounding circumstances 27‘of Mr Smith must be considered by the Bail decision maker while deciding the relevant matter.

23 As per the nature of the offence and circumstances surrounding, the defendant still within the contemplation that, the prosecution may find it difficult to secure a conviction especially when Mr Smith has no criminal conviction till now and he has never been charged with any other offences, Mr Smith’s alleged offence is not in such a manner that it would suggest a potential risk to the community, if granted a bail.

24 Mr Smith is a Law abiding citizen and it is out of his character for Mr Smith to be involved in the alleged offence, which is subject matter of this Bail application. This is to be considered that he is a first time offender.

25 Mr Smith is in stable relation with is partner Jane, it is important to note that Mr Smith has no history of Family violence or child abuse. His partner Jane is very supportive partner in these tough times of his custody.

26 Mr Smith has high chance of losing his job. He is the only earning member in his family right now as Jane lost her job due to Covid 19.

27 Mr Smith’s work life (i.e. stable employment for 10 years) and family commitments are dependent on the grant of bail.

28 Mr Smith resides in a mortgaged home with his wife and son, Mr Smith’s son has Tinnitus, it’s a medical condition where he experiences poor attention, sensitivity to nose, irritability and restlessness.

29 Mr Smith is active community member. On weekends he does voluntary community services.

30 In accordance with BA s4E(1)(a)28,the concern for the prosecution with respect to both unacceptable risk and surrounding circumstances test can be put to rest with the above clarification as per common law reference cases DPP v Giller 29 and DPP v Harika30

ARGUMENTS FOR BAIL

(i) Re Neskovski 2 31 Applying the BA s 431 every person who is arrested and held in custody is entitled to be granted Bail. The foundation upon which the defence in pleading Bail is based on common law and statues. It is gross miscarriage of justice for Mr Smith to be denied bail as it is his fundamental right as per International Covenant on Civil and Political Rights 9(3)32and in common law as applied in the case of R v Light33.

32 The defence acknowledges the concern of the prosecution in denying the bail for Mr Smith this is to protect the community from crimes and offences. But Mr Smith is a first time offender and community does not need protection from such offenders as the chance of committing the offence is negligible. In such cases Bail is granted on some conditions, relevant case for this matter is Woods v Dpp34.

33 A per Statue the person is innocent till he proved guilty. In this case Mr Smith is an innocent man with family responsibilities. The surrounding circumstances of the alleged offence indicates that Mr Smith receiving custodial sentence is very minimal as per evidences, as all three evidences are friends of Mr Jones.

34 Therefore it is inconceivable for an innocent family man with two defendants’ to be denied his liberty which is a fundamental right to him, which is clearly stated in BA s 435.Mr Smith poses no risk to the society therefore he must be granted Bail.

35 It is true that Mr Smith is not talking to his parents since 5 years, but that is just a small personal issue between them. Point is to consider is that there is no family violence recorded, so it is really a negligible cause to deny Bail.

36 Defence agrees that Mr smith is a childhood friend with a president of local crime gang, but as mentioned they are only childhood. Therefore just knowing someone shouldn’t be a reason for denial of Bail.

Rebuttal 37 Mr Smith was intimidated by Mr Jones and his friends and as a reaction this incident happened. The provocation by Mr Jones and his friends is not acknowledged by police based on witness’s statements.

38 My client Mr Smith is law abiding citizen and ready to submit any alternative or supplementary bail conduct conditions as specified under BA s 5AAA(2)37 to satisfy prosecutions intentions.

BAIL CONDITIONS BY THE DEFENCE



Submit his commercial pilot’s license.



Participate in social work.



Submit his passport and not applying for new passport.



Join anger management program or defensive driving program.



Not contacting any witnesses who are related to this matter.



Any other condition that Bail decision maker considers appropriate for this matter under BA s 5AAA (4)38.

Summary 38 In accordance with nature of alleged offence of Mr Smith and considering surrounding circumstances there are no unacceptable risks if he granted bail.

39 Defence counsel submit that after considering all facts i.e his employment, his financial condition, first time offender, surrounding circumstances, his partners support, community work ,character reference’s from his employer, not satisfying unacceptable risks and presumption to bail under BA s439 there is no reason for Mr Smith to be denied Bail.

References and Foot notes 1. Section17 Crimes Act 1958 (vic) 2. Section 18 Crimes Act 1958 (vic) 3. Crimes Act 958 (vic) 4. Section 4 Bail Act 1977(vic) 5. Bail Act 1977(vic) 6. Section 17 Crimes Act 1958(vic) 7. Section 4E Bail Act 1977(vic) 8. Section 8AA Bail Act 1977(vic) 9. Section 4E(2) Bail Act 1977(vic) 10. Section 4E(2) Bail Act 1977(vic) 11. Section 4E(1)(a) Bail Act 1977(vic) 12. Section 4E (1)(a) Bail Act 1977(Vic) 13. Section 3AAA Bail Act 1977(Vic) 14. Section 3AAA Bail Act 1977 (Vic) 15. Section 3AAA Bail Act 1977(Vic) 16. Section 4E (2)(b) Bail Act 1977(Vic) 17. Section 4E Bail Act 1977(Vic) 18. Section 8A Bail Act 1977(Vic) 19. Section 5AAA (1) Bail Act 1977 20. Section 5AAA (2) Bail Act 1977 21. Section 5AAA (4) Bail Act 1977 22. R v Light [1954] VLR 152 23. Beljajev v Director of Public Prosecutions [1991] HCA 16; 173 CLR 28 24.Hall v Pangemanan [2018] VSC 533 25. Re Neskovski 2 [2019] VSC 447 26. Section 3AAA (1) Bail Act 1977(vic)

27. Section 3AAA Bail Act Bail Act 1977(vic) 28. Section 4E(1)(a) Bail Act 1977(vic) 29. Giller v Procopets [2008] VSCA 236 30. DPP v Harika - [2001] VSC 237 31. Section 4 Bail Act 1977(vic) 32. International covenant on Civil and Political Rights 33. R v Light" [1957] ResJud 15 34. Woods v DPP - [2014] VSC 1 - 238 A Crim R 84 35. Section 4 Bail Act 1977(vic) 36. Hall v Pangemanan [2018] VSC 533 37.. Section 5AAA(2) Bail Act 1977(vic) 38. Section 5AAA(4) Bail Act 1977(vic) 39. Section 4 Bail Act 19771977(vic)...