Reference no: EM132272912 , Length: 1500 words

QUESTION

25 year old Roger Bottle (who isworking full time completing a motor mechanic's apprenticeship at a Brisbane mechanic and had only seven months remaining before the incident) was charged with Dangerous Operation of a Motor Vehicle whilst affected by an intoxicating substance (s 328A(2) Criminal Code) (DOMV). He was involved in an accident in Brisbane at 3.30 a.m. on 1 December 2018.

The alleged facts for the DOMV are that:

Roger set out to drive 15 km to his home (with his passengers), from where they had been drinking in Brisbane city. Roger's car was seen driving well above the 50 km speed limit through a red light of a city intersection and collided with a taxi. The taxi driver was knocked unconscious. The taxi's two passengers suffered, respectively, a broken collarbone and whiplash, and a fracture to the right shoulder. Roger's blood alcohol reading was 0.08% (above the legal limit of 0.05%). His passengers were not injured. He did not participate in an electronic record of interview.

Roger's antecedents are that:

His criminal history includes: 1 x Unlawful Use of Motor Vehicle and 3 x Possess Drugs for which he was fined in 2015; 4 offences of dishonesty for which he was convicted and required to perform 120 hours community service (completed in 2017). He also has substantial traffic history, including fines for speeding and driving whilst unlicensed. In 2017 he was fined and disqualified from driving for three months for drink driving.

A psychologist - based at Brisbane North PHN, a drug and alcohol counselling service, at Level 4, Lutwyche City, 543 Lutwyche Road, Lutwyche - has expressed the opinion that Roger (who she had been seeing since late 2017) had been suffering from depression since mid-2018 and had a background of alcohol abuse. This apparently worsened when he moved back in with his father, who had developed Alzheimer's disease, in October 2018 (into the house his father owned, at 4 Glass St, Ashgrove). He cares for his father as there are no other family members able to look after his father. He has not attended upon the psychologist since November last year.

Roger was given a notice to appear for the DOMV and was granted bail at his first appearance in the Brisbane Magistrates Court on 15 December 2018. His matter was set down for a committal with cross examination in the same court on 1 February 2019. He has provided instructions that he does not want to contest the DOMV charge but that he wants cross examination to focus on the speed he was travelling at the time of the offence as he says he was not speeding.

Roger was subsequently given a notice to appear in relation to a simple offence of drink driving that occurred on 8 January 2019. He appeared in relation to that offence on 22January 2019 and pleaded guilty. He was fined and disqualified from driving for 6 months.

On 1 February 2019 Roger failed to appear at Court, his bail was revoked and a warrant issued for his arrest. He was arrested by Ashgrove police on 3 March 2019and charged with Failing to Appear (s 33 Bail Act). He was brought before the Court the following day. He instructs that his night in custody, away from his Dad, was a significant shock to the system and has spurred him to turn his life around and get control of his drinking.

You will appear for Roger on 4 March 2019. He has instructed you to set the offence of Failing to Appear down for a summary trial (as he is contesting that charge) and the offence of DOMV for a new committal hearing. The next available date for appearance in the Brisbane Magistrates Court will be 27 June 2019. He has instructed you to apply for bail. The Police Prosecution has indicated it will be oppose bail on the grounds that he is an unacceptable risk of failing to appear and an unacceptable risk of reoffending. You can assume that for the most serious offence (the DOMV) upon sentence Roger will be on the cusp of either getting imprisoned or having a fully suspended sentence (which means he may be able to serve his term in the community rather than in prison).

INSTRUCTIONS

EXERCISE: This assessment is designed to replicate the type of exercise you would be required to do in practice. You will be provided with a set of facts about an offence and an alleged offender. Acting as the advocate for the accused, you will be required to prepare written submissions for the bail application that you would make to persuade the court to grant bail to your client.

Attachment:- Bail Application Assignment .rar