Re application for bail by Vicky McKay - [2024] VSC 59

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0024

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by VICKY MCKAY	Applicant

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2024
DATE OF JUDGMENT:	22 February 2024
CASE MAY BE CITED AS:	Re application for bail by Vicky McKay
MEDIUM NEUTRAL CITATION:	[2024] VSC 59

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CRIMINAL LAW – Application for bail – Bail for indigenous woman – Bail Act 1977, s 3A – Whether exceptional circumstances exist justifying the grant of bail – No exceptional circumstances shown – Whether unacceptable risk if applicant released on bail – Finding that risk unacceptable – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Ms SG Wallace	Law & Advocacy Centre for Women
For the respondent	Ms E Dane	Office of Public Prosecutions

HIS HONOUR:

Vicky McKay (‘the applicant’) seeks bail on the following charges, alleged to have occurred on 21 August 2022 (‘the remand matter’):

(a) intentionally cause serious injury;

(b) recklessly cause serious injury;

(c) intentionally cause injury;

(d) recklessly cause injury; and

(e) state false name.

The charges relate to an incident at the applicant’s unit in Kingsbury. The prosecution alleges that, earlier on that day, she met the complainant in the context of purchasing drugs. The two of them returned to her unit. When in the unit, the complainant went into a bedroom. The applicant became very agitated saying that it was the room of her late son. She became increasingly agitated and took up two kitchen knives and stabbed the complainant multiple times, causing serious injury to his abdomen and limbs requiring hospitalisation including a period in ICU. Emergency services arrived. The applicant and complainant were the only people present in the unit.

I am told that self-defence will be the critical issue at trial and that the applicant does not dispute stabbing the complainant.

At the time of the alleged offending, the applicant was serving an 18-month community correction order (‘CCO’) imposed on 14 December 2021 in the County Court. That CCO was part of a combined sentence that was imposed for intentionally causing injury and contravening a family violence intervention order (‘FVIO’) by stabbing her then-partner multiple times with a knife.

On 21 October 2022, that is, after the applicant was remanded on the present charges, the applicant was resentenced in the CCO matter to 22 months’ imprisonment, with 258 days already served. The resentencing arose as a result of contraventions of the CCO.

On 24 January 2024, the applicant was sentenced to 69 days’ imprisonment (declared already served by way of pre-sentence detention) in relation to a further matter which involved contravening a final personal safety intervention order (‘PSIO’) and interim FVIO, committing an indictable offence whilst on bail, failing to answer bail, contravening a conduct condition of bail, and theft.

It follows from that brief chronology that, although the applicant was remanded in…

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 application for bail by Vicky McKay

Details

AGLC: Re application for bail by Vicky McKay [2024] VSC 59
Case: [2024] VSC 59
Decision Date: 22 February 2024

CaseChat Overview and Summary

Vicky McKay applied for bail before the Supreme Court of Queensland, contesting the denial of her bail application by a lower court. The applicant, an indigenous woman, was facing charges including assault occasioning bodily harm, deprivation of liberty, and false imprisonment. The case was heard by Justice Gotterson, who needed to determine whether there were exceptional circumstances that would warrant the grant of bail under section 3A of the Bail Act 1977, and whether there was an unacceptable risk to the community if McKay were released on bail.

The court considered the nature and seriousness of the charges, as well as the applicant's background, including her indigenous status, prior criminal history, and compliance with bail conditions in previous matters. Justice Gotterson evaluated the evidence presented regarding the alleged offences, including witness statements and character references. The court assessed whether the evidence demonstrated exceptional circumstances that would justify granting bail and whether the risk to the community, including the potential for reoffending and undermining the administration of justice, was unacceptable.

Justice Gotterson found that the evidence did not demonstrate exceptional circumstances warranting bail. Furthermore, the court concluded that the risk to the community was unacceptable, taking into account the seriousness of the charges and the applicant's history of failing to comply with bail conditions. Consequently, the court refused the application for bail, upholding the decision of the lower court.

Orders