R v KT

[2020] ACTSC 136

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KT

Citation:

[2020] ACTSC 136

Hearing Date:

18 May 2020

DecisionDate:

18 May 2020

Before:

Elkaim J

Decision:

The application for bail is granted.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special circumstances including COVID-19 pandemic – poor record of compliance with bail – substantial surety and security offered

Legislation Cited:

Bail Act 1992 (ACT) s 9D

Parties:

KT (Applicant)

The Queen (Respondent)

Representation:

Counsel

J Robertson (Applicant)

M Howe (Respondent)

Solicitors

Sharman Robertson Solicitors (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCC 93 of 2020

ELKAIM J:

1. The applicant in this matter is seeking bail in respect of charges that he is likely to face some time towards the end of the year. Because of the history of the matter he needs to overcome the hurdles of s 9D of the Bail Act1992 (ACT). What that section requires is that he establish special circumstances.

1. The special circumstances that he relies upon here are:

(a)The COVID-19 pandemic;

(b)The details of some proceedings that he is facing in June where he is charged with aggravated burglary but his co‑accused were able to plead guilty to common assault; and

(c)That in the case that he is facing, the evidence is not very strong. 

None of those three individually amount to special circumstances. 

1. As far as COVID-19 is concerned, it definitely is a very unusual situation and does impact upon persons who are in custody, especially with the restrictions on visitors. There is no suggestion in this case of any particular harm to the applicant, or of any situation in the prison that heightens the risk of COVID‑19. Nevertheless, it is a substantial risk to any person anywhere in Australia. As to the other two so-called special circumstances, I think it is conceded that, alone, they do not amount to much. The best that can be said is that perhaps they tip the COVID-19 circumstance into a special circumstance, and I am prepared to find to that effect. 

1. We then get to the question of whether, having passed that threshold test, he should get bail. The problem that he faces is his record with bail. It is not good. Although some of the offences, the breaches of bail, occurred when he was a minor, he does have a recent record. I was told that one of the breaches is going to be challenged, but, even so, I would not normally grant him bail. What makes the difference in this case is the surety that has been offered. It is a very substantial surety, which involves a young woman paying $20,000 into court. I am told that this person is no more than a friend of the applicant, but it must be a very solid friendship indeed if she is prepared to risk this amount of money. 

1. In addition, someone else living at the house is prepared to put up his Ford motor car as security. I wonder a little about the valuation of that Ford motor car but, not having any expertise in motor vehicles of that type, I am not in a position to doubt it. It does suggest again that the friendship with that person must be a very close friendship, because the applicant will no doubt be aware that if he breaches his bail conditions, which are very strict, then those individuals are going to lose those assets. I am sure he knows that.  It will not take much by way of a breach for them to forfeit what they are putting up. 

1. The order of the Court is that bail is granted on the conditions set out in paragraph 10 of the affidavit of Mr Jacob Robertson, affirmed on 12 May 2020, with the addition in paragraph (f) of the names [redacted] and [redacted].

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 28 May 2020