Re JK - [2020] VSC 160

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0169

IN THE MATTER of the Bail Act 1997

and

IN THE MATTER of an application for bail by JK

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March, 1 April 2020
DATE OF JUDGMENT:	1 April 2020
CASE MAY BE CITED AS:	Re JK
MEDIUM NEUTRAL CITATION:	[2020] VSC 160

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CRIMINAL LAW – Application for bail – Applicant charged with manslaughter – Child – Minimal criminal history – Adequate supervision and support on bail – Application supported by Youth Justice - Effects of COVID-19 pandemic – Any relevant risks able to be managed by appropriate bail conditions, including judicial monitoring – Compelling reason shown – Bail granted on conditions

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APPEARANCES:	Counsel	Solicitors
For JK	Mr J Williams Ms J Munster	Victoria Legal Aid
For the Director of Public Prosecutions	Mr G Hayward Ms R Champion	Solicitor for Public Prosecutions

HER HONOUR:

Introduction

JK is charged with the manslaughter of John Bourke, who was killed in his own home in July 2018. JK was originally charged with the murder of Mr Bourke. On 11 March 2020, after a trial held in Bendigo, JK was acquitted of Mr Bourke’s murder, but his co-accused, JF, was convicted of that murder. After deliberating for 5 days, the jury was discharged after being unable to reach a verdict against JK on the statutory alternative of manslaughter.

JK has never denied being involved with JF in an assault on Mr Bourke, but he denies being responsible for Mr Bourke’s death. His defence at trial was that he had not inflicted (or agreed to the infliction of) any serious blows, and had withdrawn from the attack before the fatal blows were struck, after trying to stop JF from further assaulting Mr Bourke. It is clear that the jury was divided on the question of whether or not JK had effectively withdrawn. JK will face a new trial on a fresh indictment for manslaughter at a later date.

After the jury was discharged, JK applied for bail pending his retrial. Some brief oral evidence was led in support of the bail application, but it was clear that both sides would need more time to gather evidence in relation to the application. Accordingly, I adjourned the bail application until today, and set a timetable for the filing of affidavits.

In the meantime, the COVID-19 pandemic intervened.

General bail principles

JK falls within the “show compelling reason” bail category.[1] He bears the burden of establishing that a compelling reason exists that justifies the grant of bail. In considering whether a compelling reason exists, I must take into account all of the “surrounding circumstances”, a concept which is defined in s 3AAA of the Bail Act, and to which I will return shortly.
[1]Manslaughter is a Schedule 2 offence, and s 4AA(2) of the Bail Act 1977 (“Bail Act”) does not apply here.

If I am satisfied…

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 JK

Details

AGLC: Re JK [2020] VSC 160
Case: [2020] VSC 160
Decision Date: 1 April 2020

CaseChat Overview and Summary

In the matter of Re JK, the applicant, a child, was charged with manslaughter and sought bail in the Supreme Court. The case involved determining whether the applicant should be granted bail, considering the severity of the charge, the applicant's background, and the circumstances of the COVID-19 pandemic. The legal issues before the court included whether the applicant's minimal criminal history, combined with adequate supervision and support, outweighed the seriousness of the charge, and whether any risks posed by the applicant could be managed through appropriate bail conditions.

The court considered the applicant's age, the support from Youth Justice, and the potential effects of the COVID-19 pandemic on the applicant's circumstances. The court found that the applicant's criminal history was minimal, and the support provided by Youth Justice was sufficient to ensure compliance with bail conditions. The court was satisfied that any risks could be managed by imposing appropriate bail conditions, including judicial monitoring. The compelling reason shown by the applicant, considering their age and support network, further supported the grant of bail.

Based on these considerations, the court granted the applicant bail on specific conditions, including judicial monitoring, to ensure compliance and mitigate any potential risks. The court's decision balanced the seriousness of the charge with the applicant's age, support system, and the unique circumstances presented by the COVID-19 pandemic. The applicant was required to adhere to the set bail conditions to maintain their liberty pending the resolution of the criminal proceedings.

Orders