Re Harrington [2026] VSC 13 (29 January 2026)

2 The applicant is 55 years old. He performs work as both a gardener and a mobile butcher. He has no criminal history and no other matters pending or outstanding. He was arrested on 11 December 2025 and has been in custody since that date. He was refused bail in the Magistrates' Court on 5 January 2026. He is charged with intentionally cause serious injury,[1] reckless conduct endangering life,[2] using an unregistered category A or B longarm,[3] using a firearm in a dangerous manner,[4] and using a firearm in the commission of an indictable offence.[5]

3 The charges arise from an ongoing neighbourhood dispute. The applicant and his wife, Fiona Stewart, live in the same street as Alexandra and Mark Hearn. The Hearns have made numerous complaints about the applicant and Ms Stewart damaging landscaping completed at their property, by driving over and parking on the nature strip with large trucks.

4 On 10 December 2025, the Hearns woke up to observe that their lawn was damaged by either being 'burnt or etched'. Their garage door was spray-painted with the words 'you can't hide biatch'. The Hearns suspected that the applicant was responsible for the damage. Another neighbour related to the Hearns, Samuel Shaw, who is the complainant, decided to speak to the applicant about the matter. On 11 December 2025, after making a number of attempts to call the applicant, the complainant attended the applicant's address. It is alleged that, on entering the applicant's premises, the applicant discharged a .22 calibre unregistered bolt-action longarm rifle, shooting the complainant and causing serious injury.

5 There were no personal safety intervention orders or family violence intervention orders in place at the time of the alleged offending. Interim personal safety intervention orders were granted by consent to a number of the applicant's neighbours (including the complainant and his family) on 5 January 2026.

7 In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B of the Bail Act 1977 (the 'Act'), which provides:

(1AA) The Parliament recognises the overarching importance of maximising,

to the greatest extent possible, the safety of the community and persons affected by crime.

(1) The Parliament also recognises the importance of -

(b) taking account of the presumption of innocence and the right to liberty; and

(c) promoting fairness, transparency and consistency in bail decision making; and

(d) promoting public understanding of bail practices and procedures.

8 The charge of intentionally cause serious injury is a Schedule 2 offence. Accordingly, the applicant must first show that a compelling reason exists that justifies the grant of bail.[6] If no compelling reason exists, bail must be refused.[7]

9 The Court of Appeal in Rodgers v The Queen summarised the principles to be applied when considering the compelling reason test as follows:

(1) For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.

(2) It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.

(3) A compelling reason is one which is forceful and therefore convincing - a reason which is "difficult to resist".[8]

10 In Re Troon, Walker JA confirmed that a lack of prior criminal offending may support the existence of a compelling reason.[9]

11 It was recognised by Priest JA in Re Gloury-Hyde, in the context of an assessment of exceptional circumstances, that the absence of factors pointing to the applicant presenting an unacceptable risk - in any of the ways contemplated by the Act - has often been regarded as important when determining whether exceptional circumstances exist.[10] In a similar way, the absence of factors pointing to the applicant presenting an unacceptable risk will be important when considering the compelling reason test.

12 If satisfied of the existence of a compelling reason, the Court is required to apply the unacceptable risk test. The Court must refuse bail if the prosecution establishes that there is an unacceptable risk that the applicant would, if released on bail:

(a) commit a Schedule 1 offence or a Schedule 2 offence; or

(b) otherwise endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or

(c) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(d) fail to surrender into custody in accordance with the bail undertaking.[11]

13 The applicant relied on an affidavit of Stephanie Mawby, solicitor, affirmed 9 January 2026, detailing:

(a) the charges for which the applicant seeks bail;

(b) a number of procedural matters;

(c) evidentiary matters pertaining to relevant surrounding circumstances; and

(d) proposed bail conditions.

14 The prosecution relied on an affidavit of Jacqueline Zhu, solicitor, affirmed 22 January 2026, confirming a number of matters set out in the applicant's affidavit and exhibiting the informant's report. No challenge was made to the evidence advanced by the applicant in support of meeting the compelling reason test.

15 The applicant submitted that the following combination of circumstances demonstrates a compelling reason for the grant of bail:

(a) there is likely to be substantial delay, with no trial realistically able to be held until 2027;

(b) the likely sentence (if the applicant were to be convicted) may depend on a number of factors, noting that the offending is not at the highest end of seriousness;

(c) it cannot be concluded that the case is strong on all charges;

(d) the applicant has no criminal history;

(e) the applicant has ties to the Victorian jurisdiction;

(f) the applicant has suitable accommodation, family support and employment available to him;

(g) the applicant takes prescribed blood thinners and must be careful not to cut or bruise himself; and

(h) a substantial surety of $100,000 is available.

(a) there is no compelling evidence to support the assertion that the applicant would endanger the safety or welfare of any person, or interfere with any witness, or otherwise obstruct the course of justice; and

(b) stringent bail conditions and the imposition of a surety would reduce any risk to an acceptable level.

17 The bail conditions proposed by the applicant were to the effect that:

(a) the applicant reside at a fixed address, namely his wife's cousin's address in New South Wales;

(b) the applicant be geographically excluded from Point Lonsdale;

(c) the applicant's wife provide a surety of $100,000;

(d) the applicant surrender all firearms and firearms licences;

(e) the applicant surrender his passport and not attend any place of international departure;

(f) the applicant comply with all personal safety intervention orders;

(g) the applicant be prevented from contacting any witnesses for the prosecution, save for the informant.

18 The prosecution submitted that the applicant needed to satisfy the Court that there was a compelling reason that justified the grant of bail. The prosecution submitted that the seriousness of the alleged offending and the strength of the prosecution case weighed against the existence of a compelling reason.

19 The prosecution did not pursue a submission that the applicant posed an unacceptable risk, conceding that any risk was ameliorated due to the proposed residential address.

20 The prosecution also accepted that the absence of an unacceptable risk was relevant to an assessment of whether a compelling reason had been made out.

21 In respect of the strength of the prosecution case, it is difficult at this early stage to reach any conclusions. But, I accept the prosecution submission that, even with ballistic testing yet to take place, the prosecution case has some strength to it.

22 The alleged offending is very serious and likely to attract a sentence of imprisonment if the applicant is found guilty.[12] There is likely to be some delay before trial, but not such that I am able to conclude that the delay before trial is likely to exceed the likely sentence that would be imposed if the charges are proved.

23 Notwithstanding the above, there are a number of factors that support the existence of a compelling reason.

24 The applicant has no criminal history and no other matters pending or outstanding. Over and above the alleged offending, there is nothing in the material that suggests the applicant, now 55 years old, is about to change this life pattern of good behaviour. His alleged offending is confined to circumstances relating to a neighbourhood dispute. The neighbourhood dispute could not, under any circumstances, justify firing a rifle at a neighbour, as has been alleged. But I accept that the animus the applicant has demonstrated is directed to a confined group of people and environment.[13]

25 Coupled with the above, the applicant's personal circumstances support a conclusion that he be given an opportunity to live and work in a positive environment whilst awaiting trial. It is clear that he enjoys the support of his wife, friends and extended family. He is very close to his elderly mother and three younger sisters.

26 It is proposed that the applicant live with his wife's cousin, some 4.5 hours' drive away from where the alleged offending took place. The applicant will have his own room and will be able to assist with farm work, thereby giving him instant employment. He is sufficiently qualified to pick up additional general farm labouring positions in the local area.

27 Although not an easy decision in light of the seriousness of the alleged offences, I am ultimately satisfied that the applicant has demonstrated that a compelling reason exists that justifies the grant of bail. Of significance is the absence of any criminal history and the existence of a sensible plan for accommodation and employment well away from the environment that led to the alleged offending.

28 The most significant risk in respect of the applicant is the risk of him returning to the neighbourhood in which the alleged offending took place.

29 The proposal that the applicant live with his wife's cousin, some 4.5 hours' drive away from where the alleged offending took place, significantly mitigates any risk in this regard. I accept the evidence that there are no firearms stored on the proposed property and that the person with whom he will be residing has no criminal history.

30 The applicant's wife of nine years continues to support the applicant and has offered a substantial surety.

31 With the bail conditions proposed by the applicant, I am not satisfied that the risk of granting bail would be unacceptable.

32 Accordingly, I will grant bail, on conditions to the effect of those proposed by the applicant.

[1] Crimes Act 1958, s 16.

[2] Ibid, s 22.

[3] Firearms Act 1996, s 6A(1).

[4] Ibid, s 129.

[5] Crimes Act 1958, s 31A.

[6] Bail Act 1977, s 4AA(3), 4C(2).

[7] Ibid, s 4C(1A).

[8] Rodgers v The Queen [2019] VSCA 214, [43] (citations omitted).

[9] Re Troon [2024] VSC 607, [31] (Walker JA).

[10] Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA).

[11] Bail Act 1977, s 4E(1).

[12] Although I accept that a determination of the likely sentence is not possible at this stage.

[13] This issue is also relevant to the question of unacceptable risk.