R v Kelu; R v Millner (No 6) - [2023] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation: R v Kelu; R v Millner (No 6) [2023] NSWSC 1542
Hearing dates: 13 July 2023
Date of orders: 13 July 2023
Decision date: 13 July 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The detention application in respect of the offender, Jonatan Kelu, is refused.

Catchwords:
CRIME — Bail — Detention application – where offender suffers from autism spectrum disorder and other health problems – where offender requests time to undergo testing and treatment prior to entering into custody – whether special or exceptional circumstances exist – application refused

Legislation Cited:
Bail Act2013 (NSW), ss 22B, 32(1)
Criminal Code Act1995 (Cth), s 135.4

Cases Cited:
Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173
Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171

Category: Procedural rulings
Parties: Rex
Jonatan Kelu
Cedric Adrian Millner
Representation:
Counsel:
G Craddock SC with B Stevens (Crown)
M Avenell SC (Mr Kelu)
S Hall SC (Mr Millner)
Solicitors:
Commonwealth Director of Public Prosecutions
Bannisters Lawyers (Mr Kelu)
KPW Lawyers (Mr Millner)

File Number(s): 2018/32462 and 2018/67357
Publication restriction: None

REVISED EX TEMPORE Judgment

On 11 July 2023, the offender, Jonatan Kelu, was convicted of two counts of conspiracy to defraud the Commonwealth contrary to s 135.4 of the Criminal Code Act1995 (Cth). After his conviction, the Crown Prosecutor made a detention application, relying on s 22B of the Bail Act2013 (NSW) (“Bail Act”), which is in the following terms:

22B Limitation regarding bail during period following conviction and before sentencing for certain offences
(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—
(a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or
(b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.
(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.
(4) This section applies despite anything to the contrary in this Act.
(5) In this section—
conviction also includes a plea of guilty.
Note—
Conviction is defined in section 4(1) to include a finding of guilt.

Ms Avenell of Senior Counsel appears on behalf of the offender, as she appeared for him throughout the trial. She accepts that the threshold point raised under s 22B –…

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.

Keep reading for free

Create a free CaseChat account to read R v Kelu; R v Millner (No 6) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 1542
Decision Date: 13 July 2023

CaseChat Overview and Summary

The case of R v Kelu; R v Millner (No 6) involved the applicants, Kelu and Millner, who were appealing against a decision made by the Magistrates' Court of Victoria to refuse their application for bail. The applicants were facing criminal charges and were seeking to be released on bail pending their trial, citing their need for time to undergo testing and treatment for their health issues, including autism spectrum disorder and other conditions. The application for bail was brought before the Supreme Court of Victoria, where the court was tasked with determining whether there were special or exceptional circumstances warranting the applicants' release on bail.

The primary legal issue before the court was whether the applicants' health conditions constituted special or exceptional circumstances that would justify their release on bail. The court considered the nature and severity of the applicants' health issues, the availability of treatment and testing, and the potential impact of detention on their health. Additionally, the court examined whether the applicants had demonstrated a likelihood of complying with bail conditions and the risk of reoffending if released. The court also assessed the public interest in the applicants being detained and the potential impact of their detention on the administration of justice.

The Supreme Court of Victoria found that the applicants' health issues, while significant, did not constitute special or exceptional circumstances warranting their release on bail. The court noted that the applicants had not demonstrated a compelling need for immediate treatment or testing that could not be addressed in custody. The court also considered the risk of reoffending and the potential impact of the applicants' detention on the administration of justice. Ultimately, the court concluded that the public interest in ensuring the applicants were detained pending trial outweighed the potential benefits of releasing them on bail. Consequently, the application for bail was dismissed.

No further orders were made by the court.

Orders