Applicant with Family Violence Intervention Order Applies for Bail

Re Glasby [2021] VSC 428 (21 July 2021)

The applicant, with charges of contravening a family violence intervention order and persistent contravention of a family violence intervention order, filed an application for bail.  The Court, in deciding whether or not to grant the bail, applied the exceptional circumstances test. 

Facts:

The applicant's criminal history involves family violence, unlawful assault, theft, possession of cannabis and findings of guilt in the youth jurisdiction.  The applicant was in an intimate relationship with the complainant from April 2017 until he ended the relationship in February 2020, they then recommenced their relationship, but separated on September 2020. The applicant was charged by Constable Emma Faliszewskfor making a threat to kill, reckless conduct endangering life, possessing a prohibited weapon without exemption or approval, and unlawful assault (three charges).

The applicant was also charged by First Constable Luke Phillips with contravening a final family violence intervention order (‘FVIO’) (four charges), persistent contravention of a FVIO, committing an indictable offence whilst on bail, criminal damage, and attempting to pervert the course of justice (two charges).  At the time of his arrest and remand, the applicant was on bail and summons in three other matters involving allegations made against him by the complainant.  He was refused bail at the Melbourne Magistrates’ Court because of the unacceptable risk that he would commit an offence while on bail or endanger the safety or welfare of any person.  The applicant then sought a grant of bail in this court.

The applicant was arrested at the complainant’s residence, and charged by Senior Constable Mohan Singh with persistent contravention of a FVIO, contravening a final FVIO (six charges), and committing an indictable offence whilst on bail.  The applicant is alleged to have called the complainant 22 times between 1 and 9 May 2020.

The court previously provided that he reside reside at 1508/250 Elizabeth Street, Melbourne and comply with the intervention order protecting the complainant.  A final FVIO was made at the Melbourne Magistrates’ Court naming the applicant as the respondent and the complainant as the protected person.  The FVIO expires in 2025 and there is no other active FVIO in force against the applicant.

Issues:

I. Whether or not the applicant demonstrated exceptional circumstances.

II. Whether or not the applicant should be granted bail. 

Applicable law:

Bail Act 1977 (Vic) - requires the court to maximising community safety to the greatest extent possible and taking into account the presumption of innocence and right to liberty.

Bail Act 1977 s 4AA(2)(c)(i) - requires the applicant to demonstrate exceptional circumstances justifying the grant of bail. 

Analysis:

The surrounding circumstances as required to be taken into account by the Court in applying the exceptional circumstances test include an alleged deviance of the intervention order, ignoring an intervention order, ignoring the obligations of bail and engaging in violent behaviour towards the complainant on a number of occasions, including an act of strangulation and threats to kill her.  It is impossible to disregard the overall allegations of violence when assessing the surrounding circumstances to the exceptional circumstances test, and if necessary, the evaluation of the degree of unacceptable risk.  Furthermore, the lack of supporting evidence as to physical violence is not a circumstance that is determinative of this application. 

Conclusion:

The Court concluded that the exceptional circumstances test has not been met.  The applicant remains an unacceptable risk of committing further offences that cannot be ameliorated by strict conditions attaching to a grant of bail. The Court refused the application for bail.