Re K I - [2021] VSC 736

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0307

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by K I

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2021
DATE OF JUDGMENT:	9 November 2021
DATE OF REVISED REASONS:	10 November 2021
CASE MAY BE CITED AS:	Re K I
MEDIUM NEUTRAL CITATION:	[2021] VSC 736

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CRIMINAL LAW — Bail — Application for bail — Charges of criminal damage and contravening a conduct condition of bail — ‘Compelling reasons’ test — Compelling reasons conceded by respondent — Delay in matter finalising — Probability applicant would spend more time remanded in custody than term of imprisonment imposed upon a finding of guilt if bail not granted — Youth — First time in custody — Compelling reasons established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E, 5AAAA; Family Violence Protection Act 2008 (Vic) s 4.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Gabriel Chipkin	Victoria Legal Aid
For the Respondent	Ms Danielle Pastoors	Victoria Police

HIS HONOUR:

Introduction

This is an application for bail by K I ( ‘applicant’). He is 21 years old and has no criminal history. His current remand period, which commenced on 2 November 2021, represents his first time in custody.

Procedural history

On 29 October 2021, the applicant was arrested by Constable Daniel Blume on a single charge of criminal damage, relating to events involving the applicant’s former partner (‘the complainant’) alleged to have occurred on 10 October 2021.

The same day, the applicant was granted police bail subject to various conditions, including that he not commit family violence (such as by exhibiting controlling or dominating behaviours towards the “protected person(s)”), not publish anything about them on the internet, and not attend their residence. At the same time, an outstanding application and warrant for a family violence intervention order (‘FVIO’), naming the complainant and her child (‘SS’) as the affected family members (‘AFMs’), was executed.

The term ‘protected person(s)’ was not defined in the applicant’s bail conditions or undertaking. The respondent relies on the applicant having been served with copies of the FVIO application and warrant, naming the complainant and SS as the AFMs, as being sufficiently “obvious” for him to appreciate who the protected persons were intended to mean in the bail conditions.

Between 30 October and 2 November 2021, it is alleged that the applicant breached each of the aforementioned bail conditions. He was arrested by Constable Morgan Lees on 2 November 2021, charged with three offences of contravening a conduct condition of bail and remanded overnight.

On 3 November 2021, the applicant was refused bail in the informant Lees matter in the Neighbourhood Justice Centre at Collingwood. This was on the basis that he posed an unacceptable risk of endangering the safety and welfare of any person.…

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 K I

Details

AGLC: Re K I [2021] VSC 736
Case: [2021] VSC 736
Decision Date: 9 November 2021

CaseChat Overview and Summary

In the matter of Re K I, the applicant was seeking bail from the County Court of Victoria following charges of criminal damage and contravening a conduct condition of bail. The case was heard by his Honour Judge Prowse, who was required to consider the applicant's eligibility for bail under the Bail Act 1977 (Vic) and the Family Violence Protection Act 2008 (Vic). The primary legal issues revolved around whether compelling reasons existed for granting bail, considering the delay in finalising the matter and the potential impact on the applicant if bail was denied.

The court considered the compelling reasons test as outlined in section 1B of the Bail Act 1977 (Vic), acknowledging that compelling reasons had been conceded by the respondent. The court also evaluated the risk factors, including the probability of the applicant spending more time remanded in custody than the term of imprisonment that would be imposed if found guilty. The youth of the applicant and the fact that this was his first time in custody were significant factors in the court's decision. The court concluded that while compelling reasons were established, an unacceptable risk was not demonstrated.

In light of these considerations, the court granted the applicant bail with conditions, taking into account the relevant sections of the Bail Act 1977 (Vic) and the Family Violence Protection Act 2008 (Vic). The court's decision emphasised the importance of balancing the compelling reasons for granting bail against the risk of unacceptable harm if bail was not granted. The final orders included specific conditions that the applicant must adhere to during the period of his bail.

Orders