Re AJ (Revocation of Bail) [2021] VSC 395 (1 July 2021)

Last Updated: 1 July 2021

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0086

IN THE MATTER of the Bail Act 1977	Crown
v
IN THE MATTER of an Application for Revocation of Bail granted to AJ	Accused

---

JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2021
DATE OF RULING:	1 July 2021
CASE MAY BE CITED AS:	Re AJ (Revocation of Bail)
MEDIUM NEUTRAL CITATION:	[2021] VSC 395

---

CRIMINAL LAW – Bail – Applicant bailed to residential rehabilitation facility – Applicant alleged to have breached conditions of bail by possession of drug of dependence – Applicant discharged from drug rehabilitation facility – Applicant charged with breach of bail, possess drug of dependence, and commit indictable offence on bail – Application for revocation not opposed – Bail revoked – Bail Act 1977 ss 1B, 18AE, 18AF.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Hannan	Office of Public Prosecutions
For the Respondent	Mr T Magazis	Theo Magazis & Associates

HER HONOUR:

1 On 21 May 2021, I granted AJ bail in relation to the matters where the Informant is Detective Senior Constable Zahra (‘D/S/C Zahra’). That grant of bail commenced on 25 May 2021. This ruling deals with the subsequent application to revoke AJ’s bail, and as such should be read in conjunction with my original reasons for granting bail.^[1]
2 The conditions of the grant of bail were as follows:

1. The said [AJ] be admitted to bail on 25 May 2021, or as soon as practicable thereafter, on his own undertaking, with a surety of $100,000, to appear at the Melbourne Magistrates' Court on 2 August 2021 and then surrender himself, and not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody;
2. The following special conditions apply to this grant of bail:
   1. The applicant be released into the custody of a staff member of The Cottage, 6-8 St Andrews Road, Shepparton, in the State of Victoria ('The Cottage');
   2. The applicant is to reside at The Cottage until the conclusion of the four month residential program or conclusion of Committal proceedings in respect of the current charges (whichever occurs first); should the committal proceeding on 2 August 2021 not be concluded prior to the conclusion of the four month program at The Cottage, the applicant will be required to appear before this court for a review of his bail conditions on 20 September 2021;
   100. The applicant must not leave the premises of The Cottage except in the company of a staff member of The Cottage;
   4. The applicant must comply with all lawful directions of the staff at The Cottage;
   5. The informant, or his delegate, may attend at The Cottage from time to time to confirm the applicant's presence at The Cottage;
   6. That the applicant attend assessment and treatment with Dr Professor Ed Odgen, Addiction Medicine Specialist, or such other practitioner as is recommended by The Cottage;
   7. The applicant is not to have contact with or associate with, either directly or indirectly, any witness for the prosecution, other than police members;
   8. The applicant is not to have any contact directly or indirectly with [LK], [DK] or [CF];
   9. The applicant must comply with the conditions of any and all Family Violence Intervention Orders and Personal Safety Intervention Orders where he is named as the Respondent;
   10. The applicant not leave the State of Victoria;
   11. The applicant not consume alcohol or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under that Act;
   50. The applicant surrender his passport and not apply for another or any valid travel document;
   13. The applicant not attend any international points of departure;
   14. The applicant not possess a mobile phone without the prior approval of the Informant and permission from staff at The Cottage;
   15. The applicant not possess or use any encrypted communications device or program including any encrypted mobile phone;
   16. The applicant reappear before this Court, via WebEx or telephone link, for bail monitoring to review his compliance with this order at 9:30am on Friday 16 July, and any further dates this Court appoints during the course of this Order.

3 On 25 May 2021, AJ was admitted to bail on his own undertaking and with a surety in the sum of $100,000. He was released into the custody of The Cottage, in accordance with the above conditions.
4 It is alleged that on 17 June 2021, AJ was found in possession of a drug of dependence, namely Suboxone (48 strips), in breach of paragraph 2(k) of my Orders granting him bail. On that day, the applicant’s demeanour was consistent with having ingested drugs and a search was conducted of his bedroom. The 48 strips of Suboxone were located in a tissue box near his bed. This occurred within three weeks of AJ being bailed to The Cottage.
5 Staff at The Cottage contacted AJ’s solicitors and the Informant DSC Zahra that day, and The Cottage served him with a formal letter discharging him from The Cottage program. AJ was taken into police custody and charged with possessing a drug of dependence, contravening a conduct condition of bail and committing an indictable offence whilst on bail.^[2] He was remanded that day.
6 On 18 June 2021, AJ appeared before the Shepparton Magistrates’ Court for a remand hearing. He was remanded to appear on 21 June 2021 for a Mention. On 21 June 2021 he re-appeared at the Mention. He did not apply for bail, and the matter was adjourned for further Mention on 26 July 2021.
7 On 23 June 2021, the Director of Public Prosecutions filed an application to revoke AJ’s bail, together with an Affidavit in Support.^[3]
8 On 29 June 2021, AJ’s lawyers filed an Affidavit in Response to the revocation application.^[4] In that Affidavit, AJ’s lawyers confirmed that they did not oppose the revocation application. They also noted that while AJ had indeed been exited from The Cottage, The Cottage’s CEO, Maria Hutchinson, had confirmed in writing^[5] that they would welcome AJ back to The Cottage in four months’ time, should AJ wish to resume/restart treatment.^[6] In her letter, Ms Hutchinson noted AJ had made some positive steps in the program, including having participated fully in all daily responsibilities, including daily educational classes, meal preparation, cleaning. He was also supportive of other residents, and was willing to take on feedback offered. However, there was no availability for him to return to The Cottage before September 2021.
9 I heard the revocation application on 1 July 2021. In putting the argument for revocation, Mr Hannan referred to the stringent conditions of bail fixed by me in order to reduce the risk to the safety of the community and in order to reduce the risk of AJ re-offending. He submitted that residency at The Cottage was a key component of the bail conditions and could no longer be complied with. In those circumstances, bail should be revoked. He also submitted that if bail was not revoked, AJ would be likely to endanger the safety of the community or commit offences whilst on bail. I took this argument to be based on a scenario of AJ being granted bail on the new charges, although he has not applied for bail on those charges as yet.
10 Mr Magazis on behalf of AJ confirmed the application was not opposed. He explained that although AJ maintains the presumption of innocence in respect of the new charges relating to possession of Suboxone and related bail offences, AJ was taking a practical approach to the bail orders made by this Court, accepting that the bail condition placing the applicant at The Cottage, which was aimed at reducing risk, was not able to be complied with at the present time. This was not a situation where the AJ had merely been bailed to a residence in the community.

Applicable law

11 This application is made pursuant to s 18AE of the Bail Act 1977 (‘the Act’). That section provides that an application for revocation is to be made to the Supreme Court where the person is charged with murder or treason, and otherwise is to be made to the Court to which the person is required to surrender under their conditions of bail.
12 Under s 18AF of the Act, on an application for revocation of bail, the Court may either revoke bail or dismiss the application.
13 While AJ was in fact bailed to surrender himself to the Magistrates’ Court, the Crown submitted this Court should hear the revocation application given that this Court granted AJ bail. The Court’s inherent jurisdiction to hear bail matters was also referred to. AJ did not take issue with this approach.
14 I note what Priest JA said in Re Gloury-Hyde (No 2) on this issue:

As I have indicated, the application to revoke bail was made by the DPP under s 18AE. Although s 18AE(2) provides that an application under the section is to be made ‘to the court to which the person is required to surrender under his or her conditions of bail’, neither party questioned this Court’s power to deal with the application. Section 18AF provides that on an application under s 18AE , the court may either revoke bail or dismiss the application, but the Act otherwise gives no guidance as to how the discretionary powers in the section are to be exercised. That said, the Court must, of course, exercise the powers reserved to it under s 18AF by reference to the guiding principles in s 1B of the Act.^[7]

15 I also note what Champion J observed in Re Dukic:

Section 18AE(2) of the Act provides that an application for revocation of bail is to be made to the court to which the person is required to surrender under their conditions of bail, other than when a person is charged with treason or murder.
However, this Court has inherent jurisdiction to hear all bail matters. As above, the application for revocation was filed in this Court and I determined it to be in the public interest for it to be heard alongside Mr Dukic’s application for bail.
The Act provides that the Court may either revoke bail or dismiss the application, pursuant to s 18AF. The Act does not elaborate as to any requirements or considerations when determining such an application beyond the guiding principles contained in s 1B.^[8]

16 Accordingly, based on this Court’s inherent jurisdiction to hear all bail matters,^[9] and noting that AJ was to return before me for bail monitoring on 16 July 2021, I accept it was appropriate that the revocation application be heard and determined by this Court.

Decision

17 I have considered the materials filed by the parties. I have also taken account of the fact that the application is unopposed. I am mindful of the strict conditions I attached to the orders granting bail and the detailed reasons I gave for granting bail subject to those conditions. It is unfortunate that despite otherwise showing some positive signs in therapy at The Cottage, the circumstances of alleged possession of Suboxone were such that AJ needed to be discharged. As mentioned during the revocation hearing, it is reassuring that The Cottage acted swiftly upon learning of AJ’s alleged conduct, and that they promptly notified the informant D/S/C Zahra in accordance with their previous assurances to do so, should such circumstances arise. Having regard to all the circumstances of this case including that AJ can no longer reside at The Cottage at the present time, and in light of the new charges that allege that he was found in possession of a drug of dependence not very long after being bailed, I have determined that the bail previously granted by this Court should be revoked. I have had regard to the guiding principles of the Act set out at s 1B in coming to this decision.
18 Accordingly, AJ’s bail is revoked.
---

---

^[1] Re AJ [2021] VSC 291.

^[2] D/S/C Zahra is also the Informant for those matters.

^[3] Affidavit of Ashleigh Ruberto, affirmed 23 June 2021.

^[4] Affidavit of Theo Magazis, sworn 29 June 2021.

^[5] Letter dated 23 June 2021 annexed to the Affidavit at TM-7.

^[6] From the date of that letter.

^[7] [2018] VSC 520, [13].

^[8] [2018] VSC 664, [16]-[18].

^[9] Bail Act 1977, s 18AH(1).