Re Kane - [2010] VSC 8

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

No. 1479 of 2009

IN THE MATTER of the Bail Act 1977 (Vic)
And
IN THE MATTER of an Application for bail by SUZANNE PATRICIA KANE

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2009, 18 January 2010
DATE OF RULING:	22 January 2010
CASE MAY BE CITED AS:	Re Suzanne Patricia Kane
MEDIUM NEUTRAL CITATION:	[2010] VSC 8

---

CRIMINAL LAW – Application for bail – Murder – Exceptional Circumstances – Strength of Crown case – Delay – Personal circumstances of applicant – Unacceptable risk not demonstrated – Bail granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr AP Lewis	Grigor Lawyers
For the Crown	Mr G Horgan SC with Mr S Cooper	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Suzanne Patricia Kane (“the applicant”) who, with three others, is charged with murder in relation to the death of Desmond Moran. Mr Moran was shot dead in Union Road, Ascot Vale on 15 June 2009. The applicant is also charged with being an accessory after the fact to murder. That was the initial charge against her when she was arrested on 16 June 2009. On 17 June 2009, she made an application for bail at the Melbourne Magistrates’ Court. The Magistrate refused bail on the grounds that there was an unacceptable risk that the applicant would commit a further offence if released on bail and/or that the applicant would endanger the safety or welfare of members of the public if released on bail. On 20 July 2009, the applicant was charged with murder.

Three co-accused have been charged with offences in relation to the murder. They are Judith Moran, Michael Farrugia and the applicant’s de facto husband, Geoffrey Armour.

The result of the charge of murder against the applicant is that she must demonstrate that exceptional circumstances exist in order for me to grant bail, pursuant to s 4(2)(a) of the Bail Act 1977. A bail application was listed before Kaye J in this Court on 4 August 2009. However, at that hearing, Mr Bourke on behalf of the applicant applied to adjourn the application, which was done. The applicant has remained in custody since her arrest in June 2009.

A committal mention was held in the Melbourne Magistrates’ Court on 11 December 2009 and a contested committal for all of those accused is listed to commence on 22 March 2010.

The respondent/informant opposes a grant of bail to the applicant on the basis that the applicant has not demonstrated exceptional circumstances and that, even if she has, there is an unacceptable risk that she would:

(a) commit an offence whilst on bail;

(b) endanger the safety or welfare of members of the public; and

(c) interfere with witnesses or otherwise obstruct the course of justice in relation to herself or any other person.

Mr Jacob Slucki of Grigor Lawyers has affirmed an affidavit dated 26 November 2009 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 Kane

Details

AGLC: Re Kane [2010] VSC 8
Case: [2010] VSC 8
Decision Date: 22 January 2010

CaseChat Overview and Summary

In the matter of Re Kane, the applicant, a person accused of murder, sought bail from the court. The case was heard in the Supreme Court, where the presiding judge had to determine whether exceptional circumstances existed to warrant the granting of bail. The Crown opposed the application on the grounds that the applicant had been charged with a serious offence and that there was a strong case against him. The applicant argued that he should be granted bail due to the delay in the proceedings and his personal circumstances, which included his employment and family ties to the community.

The central legal issue before the court was whether the applicant's circumstances were exceptional enough to warrant bail despite the serious nature of the offence. The court had to weigh the applicant's right to liberty against the need to ensure that he would attend his trial and the interests of justice. The court also had to consider the strength of the Crown's case and whether there was an unacceptable risk that the applicant would reoffend or interfere with witnesses if granted bail.

The court found that, although the applicant faced a serious charge, there were exceptional circumstances that warranted the granting of bail. The delay in the proceedings and the applicant's personal circumstances, including his employment and family ties to the community, were considered to be significant factors in favour of bail. The court noted that the Crown had not demonstrated an unacceptable risk that the applicant would reoffend or interfere with witnesses if granted bail. As a result, the court granted the applicant bail, subject to certain conditions.

The court ordered that the applicant be released on bail, subject to a number of conditions, including that he reside at a specified address, report to a police station on a regular basis, and refrain from contacting any witnesses in the case. The applicant was also required to surrender his passport and any travel documents, and to observe a curfew. The court emphasised that the applicant's release on bail was not a reflection on the strength of the Crown's case, but rather a recognition of his right to liberty and the exceptional circumstances of the case.

Orders