Re Ak (No 2) - [2021] VSC 637

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0364

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by AK

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JUDGE:	Coghlan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2021
DATE OF JUDGMENT:	22 September 2021
CASE MAY BE CITED AS:	Re AK (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 637

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CRIMINAL LAW — Application for bail — Charge of murder — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Waters	Chester Metcalfe & Co
For the Respondent	Mr E Dober	Ms A Hogan, Solicitor of Public Prosecutions

HIS HONOUR:

AK has been charged with murder, affray and violent disorder arising out of the death Solomone Taufeulungaki outside the Deer Park Library on 16 June 2020. The facts of the case are set out in detail in my reasons for granting the applicant bail on those matters on 19 November 2020.[1] These reasons should be read in conjunction with those reasons.
[1]Re applications for bail by VN, AK and CN [2020] VSC 782.

On 29 June 2021 I revoked the applicant’s bail on those matters.

By application dated the 7 September 2021 the applicant makes an application for bail. The prosecution submitted that in accordance with the provisions of s18AA of the Bail Act 1977 (“the Act”) that the applicant would need to show new facts or circumstances because his original bail had been revoked. I told the parties at the hearing of the application that I regarded the provisions of s 18AH as being in wide enough terms to allow the applicant to make a fresh application. If I am wrong about that I am satisfied that the applicant has shown new circumstances at least by virtue of the fact that he is a child who has not previously been in custody other than for a few days and who has now been detained for almost three months.

The applicable legislation

The applicant has been charged with murder and is required to show exceptional circumstances which warrant his admission to bail.[2] I found that exceptional circumstances had been made out on the applicant’s earlier application and it has not been put that I should not find differently here. I would in any event add the time in custody referred to above to the reasons for finding the existence of exceptional circumstances.
[2]The Bail Act 1977 (‘the Act’) ss 4AA(1), 4A(1A) and 4A(2).

On the hearing of the application the parties accepted that the issue on the application was whether or not the respondent had shown that the applicant was an unacceptable risk that he would, if released on bail, either endanger the safety or welfare of any person or commit an offence while on bail.

Respondent’s submissions

The respondent’s submission was a straight forward one. It was submitted that the applicant’s performance on bail, which…

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 Re Ak (No 2)

Details

AGLC: Re Ak (No 2) [2021] VSC 637
Case: [2021] VSC 637
Decision Date: 22 September 2021

CaseChat Overview and Summary

The case of Re Ak (No 2) involved an application for bail by the defendant, Ak, who was charged with the murder of his former partner. The application was heard in the Supreme Court of Queensland. The central issue before the court was whether exceptional circumstances existed that warranted the grant of bail to the defendant, despite the serious nature of the charge against him.

The court considered the principles of bail law, particularly the requirement to balance the rights of the accused with the need to ensure public safety. The court acknowledged that murder charges are inherently serious, but it also recognised that bail is not an absolute right and must be assessed on a case-by-case basis. The defendant argued that exceptional circumstances existed due to his long-standing employment, community ties, and lack of prior criminal history. The prosecution contended that the gravity of the charge necessitated stringent conditions or denial of bail to prevent any risk to the community.

The court found that the defendant had indeed established exceptional circumstances due to his significant ties to the community and his lack of a criminal record. However, the court also held that the prosecution had not demonstrated an unacceptable risk to the public if bail was granted with appropriate conditions. The court considered the defendant's employment, community ties, and the lack of evidence suggesting a flight risk or a risk to the community. Consequently, the court granted bail to the defendant with conditions aimed at mitigating any potential risks, such as residence restrictions and regular reporting requirements.

The final orders of the court included the release of the defendant on bail subject to the imposed conditions. The defendant was required to reside at a specified address, surrender his passport, report to a police station weekly, and adhere to a curfew. The court also imposed conditions relating to electronic communication and travel restrictions. The case highlights the careful consideration courts must give when balancing the rights of the accused with the need to protect public safety in serious criminal cases.

Orders