Re KA (No 2) - [2022] VSC 363

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0130

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for Bail by KA [No 2]	Defendant

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 24 June 2022
DATE OF JUDGMENT:	24 June 2022
CASE MAY BE CITED AS:	Re KA [No 2]
MEDIUM NEUTRAL CITATION:	[2022] VSC 363

---

CRIMINAL LAW – Bail previously granted on stringent conditions – Breaches of bail – Changed circumstances – Judicial monitoring – Revocation of bail – Power of the Court to revoke bail – Applicant arrested on charge of robbery alleged to have been committed after bail granted – Bail revoked – Bail Act 1977, ss 5AAA, 18AE and 18AH.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M Smoljko	Victoria Legal Aid
For the Respondent	Mr N Watt	Legal Practice Group Victoria Police

HIS HONOUR:

On 26 May 2022, I granted the applicant bail on stringent conditions.[1] The background to this matter is set out in the reasons I have published at that time. This judgment assumes knowledge of those reasons and should be read together with them.
[1]Re KA [2022] VSC 277 (‘Bail Reasons’).

Pursuant to the orders I made on 26 May 2022, the applicant appeared in court on 20 June 2022 for judicial monitoring. Shortly prior to the judicial monitoring hearing, each side filed an Affidavit in Furtherance of Judicial Monitoring.

The affidavit filed on behalf of the applicant exhibited a Supervised Bail Progress Report compiled by Mr Rischitelli and endorsed by Mr Oderberg. The affidavit filed on behalf of the respondent exhibited an informant’s report written by Detective Senior Constable Caffrey. Both documents identified multiple breaches of bail conditions by the applicant. Largely, those breaches related to failing to attend school, failing to attend appointments and breaching curfew. That said, the material also disclosed periods during which the applicant complied with his bail conditions. Most importantly, no suggestion was made that the applicant had committed further offences since being released on bail.

During the course of the hearing on 20 June 2022, there was considerable discussion about a planned overseas trip which the applicant’s mother and some of his siblings were booked to take from 26 June to 20 July 2022. Initially, it was proposed that the applicant join his mother and siblings on that trip. Enquiries made during the course of the hearing, however, disclosed that that course was not possible.

Late during the hearing on 20 June 2022, the applicant’s counsel suggested an alternative which involved the applicant’s father travelling from interstate to Victoria to supervise the applicant in the applicant’s home while his mother and siblings were overseas. The judicial monitoring hearing was adjourned to today for the purpose of investigating the feasibility of this proposal.

On 22 June 2022, the applicant filed two affidavits in furtherance of judicial monitoring. The first affidavit exhibited an invoice and itinerary…

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 KA (No 2)

Details

AGLC: Re KA [No 2] [2022] VSC 363
Case: [2022] VSC 363
Decision Date: 24 June 2022

CaseChat Overview and Summary

The matter of Re KA (No 2) arose before the court in which the central issue was the revocation of bail granted to the applicant, KA. The applicant had been arrested on a charge of robbery, an offence alleged to have occurred subsequent to the granting of bail. The court was tasked with determining whether the breaches of bail conditions justified the revocation of bail. The case involved the interpretation and application of relevant sections of the Bail Act 1977, including sections 5AAA, 18AE, and 18AH.

The legal issues before the court encompassed the interpretation of the Bail Act 1977 provisions and the criteria for revoking bail. The court needed to consider whether the breaches of bail conditions were sufficiently serious to warrant the revocation of bail. Additionally, the court had to evaluate the changed circumstances since the initial bail was granted, specifically whether the applicant's arrest on a new charge justified a revocation of bail. The court also had to balance the applicant's right to bail against the need to ensure public safety and the proper administration of justice.

The court found that the breaches of bail conditions were serious enough to warrant revocation. The applicant's arrest on a charge of robbery, an offence that allegedly occurred after the grant of bail, constituted a significant change in circumstances. The court emphasised the importance of ensuring public safety and the proper administration of justice. It was held that the breaches of bail conditions were not isolated incidents but rather a pattern of non-compliance that indicated the applicant was not adhering to the conditions set for their release. Consequently, the court revoked the bail previously granted to the applicant.

Orders