Kirby v The Queen - [2013] VSC 602

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0182 of 2013

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by MALAKAI KIRBY

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JUDGE:	Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2013
DATE OF RULING:	31 October 2013
CASE MAY BE CITED AS:	Kirby v R
MEDIUM NEUTRAL CITATION:	[2013] VSC 602

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CRIMINAL LAW – Bail – Applicant on bail at the time of alleged offences – ‘Show cause’ situation – Indigenous applicant has spent 45 days in custody on charge of theft from shop of alcohol valued at $44 - Relevant prior convictions – Bail unopposed – Bail granted on conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J. Prior	Victorian Aboriginal Legal Service
For the Respondent	Ms J. Malobabic	Office of Public Prosecutions

HIS HONOUR:

Malakai Kirby applies for bail and, because he is charged with committing offences while on bail, he must show cause pursuant to s 4(4) of the Bail Act 1977 (Vic). Mr Kirby is charged with one charge of theft, stealing liquor to the value of $44 from a Coles Liquorland store in Bendigo.

The Crown no longer opposes the application, and I will grant bail. Nevertheless, s (4)(i) of the Act requires that I give reasons for making an order admitting Mr Kirby to bail.

I note that Mr Kirby has five prior convictions for failing to answer bail, he has numerous convictions for dishonesty offences and by this, and another theft offence, he may have breached a suspended sentence. Mr Kirby proposes to plead guilty to the charge on which he in remanded but may contest the other matter. He was admitted to bail on that other matter, hence the obligation to show cause. He admits to being addicted to drugs and alcohol and has the typical prior conviction history of a person with an addiction. These are matters that might be thought to warrant a refusal of bail.

However the consideration that favour granting bail in my view tip the scales.

First, Mr Kirby has spent 45 days in custody since he was initially charged with low level theft with a value of $45 to which he intends to plead guilty. It is not likely that Mr Kirby will be sentenced to serve more time that he has already spent in custody. Both sets of charges are listed before the Bendigo Magistrates’ Court on 7 November 2013.

Second, the time he is presently spending in custody is not being served towards the breached suspended sentence.

Third, Mr Kirby, is indigenous and has strong family ties in the local community. In particular he has a young son for whom he is sole carer. His son is currently being looked after by his sister, who is, apparently, struggling to do so on her own. He is also at risk of losing his housing, as his rent has fallen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirby v The Queen

Details

AGLC: Kirby v The Queen [2013] VSC 602
Case: [2013] VSC 602
Decision Date: 31 October 2013

CaseChat Overview and Summary

The case of Kirby v The Queen involved the applicant, who was on bail at the time of the alleged offence, facing a charge of theft of alcohol valued at $44 from a shop. The applicant, being Indigenous, had already spent 45 days in custody. The court had to determine whether to grant bail under the ‘show cause’ situation, taking into account the applicant’s prior convictions and the nature of the current charge. The prosecution did not oppose the bail application.

The primary legal issue the court needed to resolve was whether the applicant, who had relevant prior convictions, should be granted bail given that he was already in custody for 45 days on a charge of theft of low-value goods. The court needed to consider the principles of bail and the specific circumstances of the applicant, including his Indigenous status and the period already spent in custody. Additionally, the court had to balance the interests of justice against the risk of flight and the potential deterrence of bail.

The court found that despite the applicant’s prior convictions, the low value of the stolen goods and the fact that the bail application was unopposed warranted the granting of bail. The court also considered the 45 days the applicant had already spent in custody and his Indigenous background, which are factors that typically weigh in favour of bail. The court concluded that the interests of justice were best served by granting bail with conditions to ensure the applicant’s attendance at future court appearances.

The final orders of the court were to grant bail to the applicant, subject to certain conditions. These conditions were intended to ensure the applicant’s compliance with the requirements of the bail and to mitigate any risk of reoffending. The court’s decision emphasised the importance of considering the individual circumstances of the applicant, including his Indigenous status and the length of time already spent in custody, in the context of the bail application.

Orders