IN THE MAGISTRATES’ COURT

IN THE STATE OF VICTORIA

AT MELBOURNE

S ECR:12345

IN THE MATTER of The Bail Act 1977,

IN THE MATTER of an Application for bail by JOHN SMITH

BETWEEN:

JOHN SMITH Applicant

- and –

VICTORIA POLICE Respondent

1. Charges for which the applicant seeks bail

Details Charges and dates of the alleged Bail status

offending
Informant: PAUL 1. Causing serious injury recklessly On remand
pursuant to s 17 of the Crimes Act 1958
Charge date: (Vic) on 28 June 2018; and
16/08/2020 2. Causing injury intentionally or recklessly
pursuant to s 18 of the Crimes Act 1958
(Vic) on 28 June 2018
 BACKGROUND:
1. On the night of 28 June 2018, the defendant was arrested for causing serious injury
recklessly pursuant to s 17 of The Crimes Act 1958 (Vic) and charged under Causing
injury recklessly pursuant to s 18 of The Crimes Act 1958(Vic). He is presently in
police custody.
2. The Applicant Mr. Smith is a law-abiding citizen with no criminal history. He has
never been charged or convicted with any offence. This proves his positive
character. The present incident is a one of case where the applicant acted
completely out of his normal character.
3. The applicant is young and has a promising professional life. He is 30 years of old
and is living a stable life from last 5 years with his partner Jane.
4. The applicant is working in a security agency with a stable income of $100,000 per
year.
5. The applicant has been born and raised in Melbourne, he has always excelled in
studies and is also holder of a commercial pilot license.
6. The applicant Father in law is a reputed member of the community and the
defendant himself has been contributing to the society by helping the vulnerable
members of the society. 1

STATUTORY PROVISIONS

1. S 17 of The Crimes Act 1958 (Vic) clearly lays down that a person shall be guilty of
an indictable offence if he caused serious injury without any lawful excuse and has
2
acted recklessly.
2. S 18 of The Crimes Act 1958 (Vic) clearly lays down that a person who intentionally
or recklessly causes injury will be guilty of and indictable offence. 3
3. S 4E of The Bail Act 1977 lays down that for all offences – unacceptable Risk test
shall apply where the court is satisfied that the accused will be a risk to the safety or

1
Victoria university “Criminal procedure assignment”2020.
2
The crimes act 1958(vic) S17.
3
The crimes act 1958(vic) S18.
 welfare of a person and can commit offence while on bail or is a risk to the witness
and can obstruct the course of justice or fail to adhere to the conditions of the bail. 4
4. Both S 17 and S 18 of The Crimes Act 1958 do not expressly fall under Schedule 1
5
or Schedule 2 of The Bail Act 1977.
5. Schedule 1 The Bail Act 1977 lays down that a person if accused of an offence
under this schedule shall be subject to exceptional circumstances test. In our
scenario both the offence is not mentioned in the schedule 1 so this test shall not
apply in our case. 6
6. Schedule 2 of The Bail Act 1977 lays down an exceptional circumstances test or the
show compelling reason test, some of the expressly mentioned offence in schedule 2
are S 15 A (1), S15 B (1) S 16 and S 20 of The Crimes Act 1958. Thus, in our
scenario we shall also not apply this test.7
7. S1B1(b) of The Bail Act 1977 clearly lays down that the guiding principle for the
application of bail act should consider presumption of innocence and right to liberty. 8
8. S1B1(b) of The Bail Act 1977 clearly lays down that in relation to the risk the decision
maker should consider the surrounding circumstances and consider whether the
conditions of bail may be made to mitigate the risk.9
9. S3AAA of the Bail Act 1977 The decision maker shall consider the surrounding
circumstances. 10

4
The Bail Act 1977(vic) S4E.
5
The Bail Act 1977(vic) Sch 1.
6
The Bail Act 1977(vic) Sch 1.
7
The Bail Act 1977(vic) Sch 2.
8
The Bail Act 1977(vic) S 1B 1(b).
9
The Bail Act 1977(vic) S 1B 1(b).
10
The Bail Act 1977(vic) S 3AAA.
 10. S 3D of the Bail Act 1977 Flow chart for the consideration of the decision maker.

11

CASE LAW

1. R v Light [1954] clearly established that the starting point and fundamental common law
presumption is that all persons shall be granted bail. This is in concurrent to the s 21(2)
and s22(6) of The Victorian Charter of Human Rights and Responsibilities 2006.12
2. In R v Asmar [2005] VSC487 The Supreme court recognized that forecasting future
criminal behavior if the accused is granted bail is extremely difficult.13
3. In R v Magee [2009] the supreme court decided that “a citizen should not be detained
arbitrarily because there is a real risk of him committing a further offence of a relatively
minor nature; one that the criminal law will punish if committed”.14

11
The Bail Act 1977(vic) S 3D.
12
R v Light [1954] VLR 152.
13
R v Asmar [2005] VSC488
14
R v Magee [2009] VSC 384
 4. In Haddar [2014] the accused caused serious injury recklessly in the circumstances of
gross violence was granted bail. 15
5. DPP v Harika [2001] VSC 237 -court explained the meaning of unacceptable risk and
show cause. 16

ARGUMENTS FOR THE GRANT OF BAIL

1. The applicant is Law-abiding citizen and from a reputed family. He is resident of

Melbourne. The present occurrence in not the natural character of the defendant and it
was an episode which occurred on a spur of movement, it was neither pre planned nor a
well thought out strategized event. There was never any intention of the applicant to hurt
the alleged victim, the defendant himself is the victim of circumstance which were
beyond the control of the applicant.
2. The applicant is in a long term relationship and the partner and the father in law of the
defendant are willing to support him after he is granted bail, with stable income of
100,000 dollar the applicant is a Full-Time worker, even when the incident took place the
alleged victim Mr. Jones did get medical attention and the injury was not serious enough
to prove the seriousness of the S17 of the Crimes Act 1958. There is no evidence that
applicant could reoffend or could be a danger to victim or the witness or even could
affect the cause of justice.
3. The applicant is even willing to provide a security bond and undertaking to the court that
he shall not contact the alleged victim and the witness.17
4. Under common law Bail is the Right of the defendant, the supreme court has granted
bail in the cases where Schedule 2 offences has been committed while in our case the
defendant has been a minor offence and the genuineness of the charges is still to be
established in the court.
5. The applicant is even willing to surrender his passport and the Commercial pilot licence
to the court.
6. The applicant is voluntarily ready to give an undertaking of conditions to severely
mitigate the dangers to the alleged victim.

15
R v Haddar [2014] VSC 284
16
DPP v Harika [2001] VSC 237
17
Victoria university “Criminal procedure assignment”2020.
 7. As per conditions of S 3D of The Bail Act 1977 Flow chart, the public prosecutor have
not been able to satisfy the court that applicant poses any unacceptable risk to the
course of justice. 18
8. In the case of Haddar [2014] the accused caused serious injury recklessly in the
circumstances of gross violence got bail, thus there is not reason why the applicant
should be granted bail

REBUTTAL FOR THE ARGUMENST AGAINST THE GRANT OF BAIL

1. The prosecution is opposing the bail but has miserably failed to satisfy the court that
there is a risk that the applicant if released on bail, would engage in the conduct
mentioned in S4E(1)(a) of The Bail Act 1977.
2. The prosecution has alleged a watertight case based on witness statement of three
people present on the scene of crime. This contention is highly flawed as of these
witnesses have a vested interest one of them has a criminal background.
3. The prosecution has failed to submit the “serious injury” element of the charge as on the
spot medication and stiches on the forehead of Mr. Jones.
4. The prosecution has failed to consider the element of “Lawful excuse” where the
applicant acted due to persistent threat to his life, this has been overlooked by the
prosecution.
5. The prosecution has further alleged that applicant is the childhood friend of the president
of local gang and police has serious concern that the given the association and this
violent incident the applicant could be a real threat to the victim.
This story does not hold any ground as the applicant has never been in touch with him
from last several years, they were school buddies and now are not even on talking terms
with each other.
6. The prosecution has alleged that the applicant has not been spoken to his parents from
last 5 years and he in the contact with the bad elements within the community. This
statement is malicious and scandalous as due to personal and social circumstances the
applicant has not spoken to his parents.
7. The Prosecution is also opposing the bail on the ground that Mr. Jones is quite
traumatized by the incident, the prosecution has failed to take in consideration that it was

18
The Bail Act 1977 (vic) S 3D.
 Mr. Jones who has attacked the applicant and the so called witness are the crime
partner of Mr. Jones.
8. The prosecution although is opposing the bail but has miserably failed to convince the
court on the true facts of the case and this itself is a valid reason for the honorable court
to be satisfied for the grant of the bail.

PRPOSED BAIL CONDITIONS

1. The applicant shall reside at 22 Eden Street Watsonia and shall report to
Watsonia Police station once in month to the designated officer.
2. Mr. smith shall not contact the witness in the case.
3. Mr. smith shall not contact Mr. Jones or the witness and shall stay at least 500
meters away from the ordinary residence of the victim and witnesses.
4. Mr. smith will surrender his passport and his commercial pilot license to the court.
5. Mr smith shall comply with the intervention orders made by the court for Mr.
John.
6. Any other condition that the bail decision maker considers appropriate to impose
in relation to the conduct of the accused.

PERSONAL AND SURROUNDING CIRCUMSTANCES

1. As per the conditions of the ‘surrounding circumstances’ laid down in section 3AAA
of the Bail Act 1977.

(a) The present alleged offence is a one of incident with no attribution to

seriousness of the alleged offending;

(b) The witnesses are untested, and the prosecution case is not on a
tangible base.

(c) The defendant is well reputed person in the local community with no
criminal history;

(d) The defendant has always complied with law of land and adhered to
all the laws. 19

(e) The defendant has a stable social and family life and there is no
violence intervention order against the defendant.
19
The Bail Act 1977 (Vic) S 3AAA
 (f) The defendant has a stable life with full time job and own place of
residence.

(g) The father in law of the defendant is a well reputed person within the
community and the alleged association of the president of the local
gang is factually incorrect as the defendant has never meet him since
the school days. 20

(h) The defendant is undergoing diabetic treatment and needs regular

medication.

(i) The alleged victim is traumatized by the incident, but the defendant is
undertaking to stay away from the victim and the witness and there is
no chance of re-offending. 21

(j) The defendant would have to spend a substantial time in custody if

bail is refused;

(k) The likely sentence to be imposed should the accused be found guilty
of the offence with which the accused is charged;

(l) The defendant does not have any expressed support from any
terrorist organization. 22

SUMMARY

The Applicant is a law-abiding citizen with no criminal history. The alleged incident took place on
the night of 28 June 2018 and the police arrested him and charged him with S 17 and S 18 of
The Crimes Act 1958 (Vic).
The applicant is known to the alleged victim and there has been a history of past events where
the applicant has been harassed by the alleged victim.
On the fateful night Mr. John along with his friend had attacked the applicant as they were
parking their car in the garage.
The whole incident took place in a heated environment where the applicant tried to save him
and his family. The applicant is giving an undertaking to the court to mitigate the apprehensions
of the prosecution. Even the injuries which were treated cannot be termed as Serious Injuries.

20
The Bail Act 1977 (Vic) S 3AAA
21
The Bail Act 1977 (Vic) S 3AAA
22
The Bail Act 1977 (Vic) S 3AAA
The prosecution although is opposing the bail but has miserably failed to convince the court on
the true facts of the case and not been able to substantiate the claim that the applicant is a risk
to the victim. The unacceptable risk, threshold has not been corroborated by the prosecution.
The honorable court should consider justification of the surrounding circumstances and the
proposed conditions that has been imposed on the defendant to mitigate the risk.

The applicant is neither a risk to the community nor to the alleged victim so defendant
should be granted bail.

LINK FOR BAIL PRESENTATION: https://youtu.be/oiyCTcCMXrE

BIBLIOGRAPHY

Article
Victoria university “Criminal procedure assignment”2020.
Case law
R v Light [1954] VLR 152.
R v Asmar [2005] VSC488
R v Magee [2009] VSC 384
R v Haddar [2014] VSC 284
DPP v Harika [2001] VSC 237

Legislation
The Bail Act 1977 (Vic)
The Crimes Act 1958 (Vic)