Applicant for Bail Charged with Domestic Violence
Re application for bail by Falcke [2022] VSC 4 (17 January 2022)
The applicant was charged with serious violent offences against his domestic partner. The applicant filed an application for bail alleging that compelling reason to justify a grant of bail. The Court, in adjudicating this dispute, assessed the character of the offending.
Facts:
The applicant, Robert Falcke, is charged with a number of serious violent offences which he is alleged to have committed on 3 November 2021. The victim of the alleged offense on 3 November 2021 is the applicant’s domestic partner. At the time of this alleged offense he was on bail in relation to offences allegedly committed on 17 July 2021. On 3 November 2021 the applicant was arrested and remanded in custody. On 14 January 2022, an application for bail was dismissed because the Court was not satisfied a compelling reason justifying the grant of bail had been established.
The applicant was charged with recklessly engaging in conduct, being strangulation, that may have placed a person in danger of death; intentionally causing injury; recklessly causing injury; unlawful assault; making threat to kill; contravention of a family violence intervention order causing harm or fear; and being a prohibited person in possession of an imitation firearm. The applicant is also charged with committing an indicatable offence whilst on bail and with possession of cartridge ammunition in relation to the alleged events of 3 November 2021.
The applicant applied for bail in the Sunshine Magistrates’ Court on 25 and 29 November 2021. That application was refused. A report from the Court Integrated Services Program dated 25 November 2021 (‘the first CISP report’) was relied upon in that application and was exhibited to the first affidavit of the applicant’s solicitor on this application. A further report from the Court Integrated Services Program dated 13 January 2022 (‘the second CISP report’) was forwarded to the Court and was relied upon on this application. The application for bail was opposed by the prosecution.
Issue:
Whether or not a compelling reason exists justifying grant of bail.
Applicable law:
Bail Act 1977 (‘the Act’) s 4 - provides that an accused is entitled to bail unless the bail decision maker is required by the Act to refuse bail.
Bail Act 1977 (‘the Act’) s 4AA(3) and s 4C - where the accused is charged with a Schedule 2 offence, bail must be refused unless the accused satisfies the bail decision maker that a compelling reason exists that justifies the grant of bail.
Analysis:
The offences with which the applicant is charged include serious violent offences in the context of a domestic relationship. On T’s account of events, she was subjected to a terrifying attack by an enraged assailant involving an assault with a pen knife, the smashing of car windows with a hammer, hitting and kicking, threats to kill, and strangulation. The injuries sustained were not serious. The alleged conduct was in contravention of a family violence intervention order made less than two months prior.
Ms Brown of counsel, who appeared on behalf of the applicant, submitted that the delay might well be such as to result in a position where, if the applicant is found guilty, he will have spent more time in custody than the custodial portion of any sentence. However, a delay until the middle of 2022, whilst unfortunate, is not so great as to constitute a compelling reason justifying a grant of bail in this case. The alleged offending on 3 November 2021 is of a violent and very concerning character. The use of the hammer, and the strangulation, are particularly concerning.
Whilst the applicant is entitled to the presumption of innocence, the nature and seriousness of the alleged offending against his domestic partner is a very pertinent factor.
Conclusion:
The Court is not satisfied a compelling reason justifying the grant of bail existed. The application for bail is refused.
