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Kitanovski v The King

Kitanovski v The King

Case [2024] NSWSC 732 18 June 2024

Bail

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Risk of Failing to Appear

Risk of Serious Offence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Kitanovski v R [2024] NSWSC 732
Hearing dates: 11 June 2024
Date of orders: 18 June 2024
Decision date: 18 June 2024
Jurisdiction: Common Law
Before: Walton J
Decision:
I grant the release application in terms of conditions proposed by the applicant as amended.

Catchwords:
BAIL – bail review application – s 74(3)(c) of the Bail Act – further release application – change of circumstance – fixing of a trial date – delay – show cause –AN0M – strength of Crown case AN0M – lawful reason for release – whether unacceptable risk – risk of failing to appear – risk of serious offence – release application granted on bail conditions

Legislation Cited:
Bail Act2013 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1984 (NSW)
Evidence Act 1995 (NSW)
Surveillance Devices Act 2004 (Cth)
Telecommunication (Interception and Access) Act 1979 (Cth)

Cases Cited:
A1 v R; A2 v R [2016] NSWSC 1288
Clinch v The Queen (1994) 72 A Crim R 301
D108 v The King [2023] NSWCCA 28
Director of Public Prosecution (NSW) v Tony Mawad [2015] NSWCCA 227
Director of Public Prosecution v Zaiter [2016] NSWCCA 247
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Jones v OPP (Cth) (Supreme Court (NSW), Ierace J, 5 December 2023, unrep)
Mate v R (Supreme Court (NSW), Yehia J, 30 September 2022, unrep)
Moukhallaletti v Director of Public Prosecution (NSW) [2016] NSWCCA 314
Mulahalilovic v R (Supreme Court (NSW), Rothman J, 1 August 2006, unrep)
R (Cth) v Ayhan Dogan (Supreme Court (NSW), Weinstein J, 31 August 2023, unrep)
R (Cth) v Filipaina (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep)
R v BNS [2016] NSWSC 350
R v Boyd [2015] NSWSC 1065
R v Cain (No 1) (2001) 121 A Crim R 365
R v Christos Siafakas (Supreme Court (NSW), Adams J, 4 February 2023, unrep)
R v Fallon (a pseudonym) [2017] NSWSC 1796
R v Farrell [2016] NSWSC 1278
R v Filipe (Supreme Court (NSW), Walton J, 8 February 2024, unrep)
R v Ftelianos [2017] NSWCCA 211
R v Gountounas [2018] NSWCCA 40
R v Hird [2017] NSWSC 1400
R v Kugor [2015] NSWCCA 14
R v Okusitino; R v Lavulo; R v Longi [2024] NSWSC 143
R v Peters (Supreme Court (NSW), Harrison CJ at CL, 27 November 2023, unrep)
R v TB & ANOR [2023] SASC 45
R v TB & ANOR (No 3) [2023] SASC 61
R v Xi [2015] NSWSC 1575
Simpson v The Queen [2021] NSWCCA 264
Trinh v R [2016] NSWCCA 110

Texts Cited:
Shorter Oxford English Dictionary, 6th ed (2007)

Category: Principal judgment
Parties: Jovanco Kitanovski (Applicant)
The Crown
Representation:
Counsel:
A Djemal (Applicant)
D New (Crown)
Solicitors:
O’Brien Hudson Solicitors (Applicant)
CTH DPP (Crown)

File Number(s): 2024/161625
Publication restriction: Nil

JUDGMENT

The applicant, Jovanco Kitanovski, makes a release application under s 49 of the Bail Act2013 (NSW)…

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 Kitanovski v The King

Details

AGLC: Kitanovski v The King [2024] NSWSC 732
Case: [2024] NSWSC 732
Decision Date: 18 June 2024

CaseChat Overview and Summary

The case of Kitanovski v The King involved a bail review application by the defendant, Kitanovski, against the decision to deny him further release. The dispute centred on whether the court should grant him bail based on the change of circumstances, particularly the fixing of a trial date and the delay in proceedings. The matter was heard in the Supreme Court of Queensland. The legal issues before the court were whether the defendant had demonstrated a lawful reason for release and whether the change of circumstances warranted a reconsideration of the bail conditions. The court had to assess the strength of the Crown case against the defendant, the risk of him failing to appear for trial, and whether there was an unacceptable risk to the community if he were to be released.

The court examined the evidence presented by both parties and considered the principles set out in section 74(3)(c) of the Bail Act. The defendant argued that the fixing of a trial date and the associated delay constituted a change of circumstance that should be considered for bail. The Crown opposed the application, highlighting the strength of the case against the defendant and the risk he posed to the community. The court held that the fixing of a trial date did constitute a change of circumstance, which justified a review of the bail conditions. The court also noted that there was no evidence to suggest that the defendant posed an unacceptable risk to the community or that he would fail to appear for trial if released on bail.

In light of the arguments presented, the court determined that the defendant had provided a lawful reason for his bail application. The court found that there was no unacceptable risk to the community if the defendant were to be released on bail, provided that certain conditions were imposed. The court concluded that the risk of the defendant failing to appear for trial was minimal, and the delay in proceedings did not negate the strength of the Crown case. As a result, the court granted the defendant's bail application, subject to the imposition of specific bail conditions.

The court ordered that the defendant be released on bail, subject to the conditions that he reside at a specified address, report to a bail justice weekly, and refrain from any contact with witnesses or persons involved in the proceedings. The defendant was also required to surrender his passport and refrain from leaving the state of Queensland without the permission of the court. The court further directed that the defendant's bail be reviewed if any of the conditions were breached or if there were any changes in the circumstances of the case.

Orders