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Applicant Charged with Family Violence Applies for Bail

Re Hyman [2021] VSC 491 (13 August 2021)

The applicant was initially charged with family violence with two complainants.  He was later on issued with charges of recklessly causing injury, threat to kill, assault, contravening a family violence intervention order and committing an indictable offence while on bail.  He filed an application for bail asserting that there are exceptional circumstances which warrants the Court to grant his application.  The Court assessed whether or not to grant the bail by considering the unacceptable risks, the reports of the Court Integrated Services Program, and the applicant's psychologist. 

Facts:

Lance Hyman (the ‘applicant’) was issued charges in the first McGrath matter related to family violence allegations made by the applicant’s former partner, KV, who is also a complainant in the second McGrath matter.  At the time of the alleged offending in the second McGrath matter, the applicant was on summons for a single charge of possessing a dangerous article (the ‘Gibson matter’) on bail for one charge of unlawful assault and three charges of contravening the first McGrath matter. 

He has been remanded in custody since 19 December 2020, a period of almost eight months, after being arrested by First Constable Lachlan McGrath and charged with recklessly causing injury, threat to kill, assault, contravening a family violence intervention order and committing an indictable offence while on bail. 

On 21 December 2020, the applicant applied for bail in the Heidelberg Magistrates’ Court in the second McGrath matter.  The application was adjourned on the basis that the applicant had failed to demonstrate exceptional circumstances and was at an unacceptable risk of committing an offence while on bail.

On 3 March 2021, the applicant made a further application for bail in the Heidelberg Magistrates’ Court based on delay and the availability of bail support services through the Court Integrated Services Program (‘CISP’). 

The application was refused on the basis that the applicant had failed to establish exceptional circumstances and posed an unacceptable risk. 

On 18 June 2021, in the Heidelberg Magistrates’ Court, the applicant was found not guilty of all charges in the first McGrath matter.  On 28 June 2021, the applicant made a further new facts or circumstances bail application in the Heidelberg Magistrates’ Court in the second McGrath matter.  While the presiding Magistrate was satisfied that exceptional circumstances were established, the applicant was found to be an unacceptable risk of committing an offence while on bail. 

Issue:

Whether or not the Court should grant the application for bail.

Applicable law:

Bail Act 1977 (Vic) ss 1B4AA4A4Dprovides for means maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty. 

Bail Act 1977 (Vic) s 4E - provides that even if the Court is satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court that there is an unacceptable risk. 

Bail Act 1977 (Vic) s 3AAA - provides that in considering whether any risk is unacceptable, the Court must have regard to the ‘surrounding circumstances' and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.

Bail Act 1977 (Vic) s 5AAAA  - requires that the Court, in considering whether to grant bail, contemplate whether there is a risk that the applicant would commit family violence if released on bail, and, if so, whether that risk could be mitigated by the imposition of a condition of bail or a FVIO.  

Jason Joseph Roberts v The Queen [2021] VSCA 28 - where the Court held that what appears to underpin the judicial recognition of different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending.

R v Madex [2020] VSC 145 - held that it is a relevant consideration that the applicant has spent his entire remand period subjected to COVID-19 related restrictions.

Analysis:

Ms. Cidoni, the applicant's psychologist concluded that the applicant is a man of ‘very low intellect’, who has poor coping and problem-solving skills, and who has a clinical presentation consistent with persistent depressive disorder and generalised anxiety disorder.  She reported that imprisonment will help Mr Hyman abstain, but it also creates habits of thinking and acting that can be dysfunctional in community adjustment.  The author of the CISP report, Ms Helen Souris, noted that, if granted bail, the applicant would be supported in the community by his neighbour and friend, Danielle Ready, and would be seeking to gain employment in the cleaning industry. 

On the other hand, it was submitted that the complainants' statements against the applicant are strong because these are consistent with their injuries, as photographed contemporaneously to the alleged offending. It was noted that the relevant offences were committed in 1999 and 2011 respectively.

Conclusion: 

The Court concluded that the circumstances in the application are not exceptional.  Ms Cidoni failed to clarify the effectiveness of the therapeutic measures in addressing the risk of the applicant's reoffending.  The CISP report, being reliant on the compliance of the applicant and not having been fully arranged, is not exceptional within the meaning of the Act.  Although there are triable issues in the matter and there is some basis for the criticism of the complainants’ credibility, the Court concluded that the evidence at the contested hearing is so defective that it warrants the acquittal of the applicant.  With these conclusions, the Court refused the application for bail. 

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