Re Kakar - [2020] VSC 806

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0304

IN THE MATTER of the Bail Act 1977

IN THE MATTER of an Application for Bail by OMAR KAKAR

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2020
DATE OF JUDGMENT:	1 December 2020
CASE MAY BE CITED AS:	Re Kakar
MEDIUM NEUTRAL CITATION:	[2020] VSC 806

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CRIMINAL LAW – Bail – Aggravated carjacking, theft of motor vehicle (3 charges), reckless conduct endangering life, prohibited person possessing or using firearm (2 charges), threat to kill, possessing ammunition without a licence, possessing a drug of dependence (3 charges), aggravated burglary, theft and committing an indictable offence while on bail – Requirement to show exceptional circumstances – Whether exceptional circumstances made out – Whether an unacceptable risk of endangering the safety or welfare of any person, interfering with witnesses, or committing an offence while on bail - Exceptional circumstances not made out - Unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4A, 4D and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	James Dowsley & Associates
For the Defendant	Mr A Grant	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

The applicant is currently facing the following charges:

·aggravated carjacking, contrary to s 79A of the Crimes Act 1958;
·theft of a motor vehicle (3 charges), contrary to s 74 of the Crimes Act;
·reckless conduct endangering life, contrary to s 22 of the Crimes Act;
·being a prohibited person in possession of or using a firearm (2 charges), contrary to s 5(1) of the Firearms Act 1996;
·making a threat to kill, contrary to s 20 of the Crimes Act;
·possessing ammunition without a licence, contrary to s 124(1) of the Firearms Act;
·possessing a drug of dependence (3 charges), contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981;
·aggravated burglary, contrary to s 77 of the Crimes Act;
·theft, contrary to s 74 of the Crimes Act; and
·committing an indictable offence (aggravated burglary) while on bail, contrary to s 30B of the Bail Act 1977.

The applicant is alleged to have committed the aggravated carjacking, with which he is charged, on 19 November 2019. On 4 December 2019, at approximately 3.45 am, the applicant was charged with an unrelated matter and released on bail. Within the space of 3 hours, after being released on bail, the applicant is alleged to have committed the aggravated burglary with which he is charged. Later on the same day, the applicant was arrested and charged with the offences he now faces. He has been in custody since that time.

On 18 September 2020, the applicant made an application in the Magistrates’ Court for bail. Having been accused of a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — aggravated carjacking…

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 Kakar

Details

AGLC: Re Kakar [2020] VSC 806
Case: [2020] VSC 806
Decision Date: 1 December 2020

CaseChat Overview and Summary

In the matter of Re Kakar, the respondent faced a multitude of serious criminal charges, including aggravated carjacking, theft of motor vehicles, reckless conduct endangering life, and possession of a firearm and ammunition as a prohibited person. Additionally, he was charged with threatening to kill, possessing a drug of dependence, aggravated burglary, theft, and committing an indictable offence while on bail. The case was heard in the Magistrates’ Court of Victoria. The central issue before the court was whether the respondent had demonstrated exceptional circumstances warranting his release on bail, considering the gravity of the charges and the potential risks he posed to public safety, witnesses, and compliance with bail conditions.

The court was tasked with determining whether the respondent's circumstances were indeed exceptional enough to merit bail, and whether his release would present an unacceptable risk of endangering the safety or welfare of any person, interfering with witnesses, or committing an offence while on bail. In assessing these matters, the court considered the nature and seriousness of the charges, the respondent's criminal history, and the evidence presented regarding the likelihood of the respondent adhering to bail conditions. The respondent argued that he had strong ties to the community, including family and employment, and that he would comply with any bail conditions imposed.

After careful consideration, the court found that the respondent had not demonstrated exceptional circumstances that would warrant his release on bail. The court concluded that his release would present an unacceptable risk to the safety and welfare of the community, potential witnesses, and compliance with bail conditions. The court cited the serious nature of the charges, the respondent's criminal history, and the potential for reoffending while on bail. Consequently, the court refused the respondent's application for bail.

Orders