Bail Application For Don In A Serious Injury Case

On 4 March 2017 Don is charged with intentionally causing serious injury contrary to section 16 of the Crimes Act 1958 (Vic). The alleged victim is his partner, Victoria, with whom he lives in a de facto relationship and has done so for eight years. They have one child, aged 4. It is alleged by police that Don became upset and angry while he and his partner were at a bar and he accused Victoria of flirting with other men. He then broke his wine glass and glassed Victoria in the face.

There is video footage of the incident, although the quality is poor given that the bar was relatively dark. Victoria was taken to hospital, where she remained for one week. She lost the use of her right eye and required 30 stiches to her face. She will have a permanent 6 centimetre scare on her face.

Don is seeking bail in relation to the offence. He is currently on bail for an alleged burglary he committed two weeks early several houses from his premises, in relation to which it is alleged he stole a small amount of cash ($300).

He is 34 years old. He has one prior conviction for unlawful assault. The victim in relation to this matter was Victoria. This occurred two years earlier, following an argument at a restaurant where he threw a plate at her, causing her minor bruising to the upper body.

Don is employed as an electrician. If he does not succeed in his bail application, it is likely that he will lose his job. He is the main bread winner in the family. He is in relatively good health but has high blood pressure and is undergoing tests for an irregular heart-beat.

Police are also investigating him in relation to suspicious bruising on his child which was reported 14 days ago by doctors at the Children's Hospital following three admissions on the child within five months for trauma injuries none of which required the child to be an inpatient. Victoria on each of these occasions told doctors the cuts and bruises were the result of falls sustained by the child.

Victoria has told the police that she wants Don to get bail. She states that he sometimes has a temper but ‘deep down he is a loving partner and can be a good dad and that without his income she would be destitute.

Police oppose the grant of bail on the grounds that Don is in a show cause situation and if he is released on bail there is an unacceptable risk he would commit further offences.

You are the lawyer for Don.

• Don has been charged with intentionally causing serious injury in contrary to section 16 of Crimes Act 1958 (Vic).The police have alleged that Don has glassed his partner Victoria, in the face, as he was angry and upset seeing her flirting with other men. Police has adduced a video footage of the incident as an evidence, with a poor quality and has adduced medical evidence that Victoria had to undergo 30 stitches to her face and her right eyes was no more of use. Further, she would have a permanent 6-centimeter scar on her face.
• Don is at present, is on bail for committing burglary two weeks before the current allegation. Further, he was previously convicted for unlawful assault where he threw a plate at Victoria at a restaurant and caused minor bruising to the upper part of her body.
• The police suspects that Don has caused minor bruise on his 4-year-old child as per the report of the doctor at the Children’s hospital where the child was admitted thrice for trauma injuries within five months.
• Under section 464 A of the Crimes Act (Vic)every person whether in Victoria or anywhere else, taken in a custody for committing any offence is entitled to be released unconditionally or released on bail. Such person must be brought before the Magistrate’s Court or a bail justice within a reasonable time after the person is taken into custody.
• Although a police officer or a sheriff may grant bail application, but the police officers determine most of the bail applications except for bail applications made by a child accused of committing an offense under section 346(2) of the Youth and Families Act 2005 (Vic).
• Two factors are considered before granting or denying a bail application. Firstly, where an accused is charged with serious offense and there is an apprehended risk that the offender shall not only abscond to avoid the court trial but shall also commit further offenses. Secondly, whether the accused, while awaiting trial on the first offense has been charged with committing additional offences or has been previously suspected or convicted in criminal offenses for which the accused has not been charged, at present.
• The Bail Act 1977 exclusively regulates bail (Vic) where section 4lays down the presumption in favor of bail. Every accused person has a right to bail but under certain circumstances, the court may refuse to grant bail.
• The circumstances under which an accused person is not granted bail have been stipulated under section 4 (2) of the Act:
• If the accused person is charged with treason or murder subject to the exceptions laid down under section 13 of the Act;
• If the accused is charged with a serious drug offense subject to the exceptions laid down under section 4(2) (aa);
• Under section 4(2)(d)(i), if the court is satisfied that there is an unacceptable risk that if the accused is released on bail he would
• Fail to surrender himself into custody in response to the bail
• Commit any further offense
• Jeopardy the welfare and the safety of the public
• Meddle with the witnesses or impede the court of justice whether in relation to any person or to himself
• In order to assess whether the accused is an unacceptable risk, the court must take the following factors into consideration that have been stipulated under section 4(3):
• The gravity and nature of the offence committed by the accused person
• The antecedents, home environment, association, character and background of the accused person
• The potency of the evidenced adduced against the accused person
• The history of any previous bail granted to the accused
• The attitude of the alleged victim expressed before the court regarding the grant of bail to the accused person
• Any conditions or factors that may be imposed in order to address the circumstances that may amounts to an unacceptable risk
• The court may deny the bail application presented by the accused person on the ground that the accused person is in a show cause situation. Under such circumstances, the accused person must prove his case, as there is a reverse burden on him. The accused person must prove that there are exceptional circumstances and a show cause situation in order to obtain a bail grant. A show cause situation refers to a situation where the accused person is required to show cause for considering and abiding by certain terms and conditions.  
• The circumstances, owing to which the accused person is placed in a show cause situation has been laid down under section 4(4) of the Bail Act 1977, where
• The accused person is alleged to have committed any indictable offense while he was awaiting trial for another indictable offense
• The accused person is charged with indictable offense or aggravated burglary that involves offensive weapon, fire arm serious drug offense or an explosive.
• The accused person has been charged with the offense of violating the intervention order or stalking and has a history of such behavioral conduct.
• In the event the accused person is required to establish exceptional circumstances in order to obtain the bail grant, a two-step approach must be adopted. After the exceptional circumstances have been established, the court must be satisfied that there is unacceptable risk associated with the accused person.
• However, the situation requiring the accused to establish exceptional circumstances differs from the situation where the accused must show cause, why the denial of the bail is unjustified. Once the accused person has overcome this threshold, no further inquiry shall be made and the bail shall be granted. The Supreme Court of Victoria has explained this principle has been explained in the case of Asmar, Bail Application [2005] VSC 487.
• The presumption against the bail application can be made either by exceptional circumstances or by showing cause. In case of severe serious offenses and circumstances, bail cannot be granted unless the accused person establishes exceptional circumstances. In case of less serious offenses, bail shall be denied unless the accused person shows cause why the person’s detention in the custody is unjustifiable.
• The conditions or the factors that constitutes exceptional circumstances are similar to the factors that constitutes showing cause situation; the only difference between these two considerations is that it is more difficult to overcome the exceptional circumstances as compared the show cause requirement.
• The rationale behind the denial of the bail application is the fear that if bail is granted to the accused person, the person shall abscond or commit further offenses in order to escape the court trial.
• In order to rebut the presumptions against bail, the accused person must establish that factors pertinent to showing that it is appropriate to grant the bail. The factors may be divided into the following categories:
• The accused person must establish that by absconding he or she will lose a lot, for instance, in case the accused person has deep and strong family connections or the person has important business or career interests;
• The accused must establish the factor or re-assure the court that he or she shall not commit any further offences if bail is granted to him or her on the ground that such person does not have any strong criminal history.
• The accused must show that his or her medical condition is weak and a poor health condition may delay the matter in dispute from being tried before the court as was held in R v Naidu [2011] VSC 170.
• A weak prosecution case may act as an essential factor that may act in favor the bail application as was held in Pak v DPP [2008] VSC 529, as a weak prosecution case may cause delay in the trial procedure.
• In cases where the police officers denies granting bail to the accused person or opposes the bail petition, a bail hearing shall be held under such circumstances. If the accused person wishes to contest the opposition to bail, a contesting hearing shall be conducted wherein the police officers shall adduce evidences that the accused person has been previously convicted or has failed to appear before the court. The police officer may provide evidence’ regarding the accused person’s awaiting trial for anther offence or that the accused person is likely to be proved as convicted in relation to the current offense for which the bail application has been presented.
• In the present case, the police have denied granting bail to Don on the ground that the accused is in a show cause situation and that there is an unacceptable risk that if bail is granted to the accused person, the person will commit further offenses and abscond in order to avoid the trial procedure of the court.  
• Under section 4(2) (d) (i) of the Bail Act 1977, it is mentioned that the court is satisfied that the accused person seeking for bail is an unacceptable risk for the society and it would be against the welfare of the people in the community. There is a fear that the accused person may meddle with the witnesses and commit further offences. In this case, Don is the sole breadwinner of the family and if he absconds after bail is granted he will lose the deep connection with his partner Victoria and his four-year-old child. Further, he is an electrician and if he does not succeed in his bail petition, he might lose his job. Therefore, if bail were granted to Din, he would not abscond to avoid the trial.
• The police officer has adduced video footage of the bar as evidence against Don to establish that he has caused intentional injury to Victoria. However, it does not amount to valid evidence, as the quality of the video footage is poor as the bar was dark.
• The police have denied the bail on the ground that Don is in a show cause situation and is an unacceptable risk for the society. In order to determine whether the accused person is an unacceptable risk, the court must have regards to the factors laid down under section 4(3) of the Bail Act 1977. One of the essential factors includes the attitude of the victim expressed before the court must be taken into consideration. Here, Victoria, the alleged victim, expresses her opinion in favor of Don and is in favor of his bail grant.
• Under section 4(4) of the Bail Act 1977, the court places the accused person in a show cause situation if the person has any previous conviction or has been alleged to have committed burglary or an indictable offence. Don has committed burglary but it was not of aggravated nature and he has been granted bail with respect to the offense. It is evident that even after bail was granted to Don, he did not abscond to avoid the court trial and neither had he committed any offense that has caused damage to the society. Therefore, if his bail application is granted the court may be assured that he would not abscond and neither commit any further offences to avoid the court trial.
• According to section 16 of the Crimes Act 1958any person who without any lawful justification causes injury to another person is guilty of an indictable offense. Here, Victoria being the alleged victim is of the opinion that Bail petition be granted Don, although a short-tempered person, but deep down the heart he is a good and loving person and a good and capable father. Therefore, the victim herself is the witness that the accused person has not committed any indictable offense.
• The police further suspects that Don has been causing bruises to his child to which Victoria has further stated that the child sustained injuries as he fell down and Don did not cause any injury to him.
• Further, he has high blood pressure and is undergoing medical treatment and medical tests for his irregular heartbeat and with such health condition, it may cause delay in the court trial procedure as was held in R v Naidu [2011].
• Furthermore, Victoria being the alleged victim is of the opinion that Don is the sole breadwinner of the family and if his bail petition is not granted he would lose his job as an electrician and without his income Victoria and their child would become destitute.
• According to the statutory provisions, in order to rebut the presumptions of bail, the accused person must either establish exceptional circumstances or ‘show cause’ why the denial of bail is unjustifiable. In order to deny the bail petition of the accused person the court must determine whether the evidences adduced against the accused person is strong enough to deny the bail petition. In this case, the evidences adduced by the police officers include the video footage at the bar, the medical evidences of Victoria’s medical treatment and the report of their child’s doctor regarding the bruises sustained by the child.
• The video footage is of poor quality as it was dark inside the bar and does not establish that Don has intentionally caused serious injuries to Victoria. Further, Victoria herself has testified in favor of Don stating that he is short-tempered but otherwise a good and loving partner and a good father. The police merely suspects the fact that the bruises sustained by the child has been caused by Don based on the reports of the doctors at the Children’s Hospital who claimed that the child has been admitted thrice in five months for sustaining such bruises. Victoria disagreed with the statement and said that the child has sustained the bruises because of his frequent fallings and Don has not caused any injury to the child, as he is a good father.
• Don has been previously convicted for committing unlawful assault against hi partner Victoria. However, this does not support the fact that he has committed the present offense for which the bail petition is presented on the ground that the sole witness of the offense is of the opinion that Don is a good and a loving partner.
• Don has been alleged to cause intentional serious injury to Victoria. However, he did not cause the injury intentionally. He saw Victoria flirting with other men and being short tempered by nature, lost his cool and broke his wine glass. Victoria got injured at the time the glass was broken and Don did not cause her injury deliberately. Victoria and Don have been into a de facto relationship for eight years and have a child as well. He is deeply and strongly connected to his partner and his four-year-old child. He is an electrician by profession and the sole earning source for the family.
• Further, he is undergoing medical tests for his irregular heartbeat and is suffering with blood pressure. If he were not granted bail application not only he would lose his job as an electrician, thus it would affect his career interest; his family would come on the breadline. Thus, if the sole bread earner of the family is put behind the bars, it would affect his family, hence, Victoria and their child shall face a major financial crunch.
• Since the police officer has denied bail petition, a bail hearing shall be conducted and the defendant Don, would like to contest the hearing and cross-examine the evidences.
• According to section 5 of the Bail Act 1977 (Vic)the court may grant bail to Don having regard to the circumstances of the accused person, the nature of eth alleged offense and interest and welfare of the public. The section requires that bail be granted based on the least burdensome conditions that is necessary, taking into consideration the nature, circumstances of the offender and the welfare of the public and the society.

The court may grant bail to Don on the following conditions:

• Don may be released by taking an undertaking to appear before the court;
• He may be released on deposit of money along with the undertaking;
• He may be released on the undertaking along with surety or sureties;
• The court may add special conditions as it may deem fit to ensure that the defendant does not offend or interfere with the witness while on bail under section 5 of the Act;
• If the court considers the charges alleged to be serious, it may require the defendant to surrender his passport, as a condition of bail.

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