JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	24, 25 & 30 July 2018
DATE OF JUDGMENT:	3 August 2018
CASE MAY BE CITED AS:	Re Kaya & Granata
MEDIUM NEUTRAL CITATION:	[2018] VSC 420

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CRIMINAL LAW — Applications for bail — Applicants two of six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country — Whether exceptional circumstances justifying bail — Whether each applicant, if bailed, presents an unacceptable risk of failing to appear at trial, committing an offence and/or endangering the safety or welfare of another — Delay of at least two years and seven months, and up to two years and eleven months, between arrest and trial to verdict — Delay of at least two years and ten months, and up to three years, between arrest and sentence if convicted – Whether delay might exceed sentence likely to be imposed if convicted — Each applicant has family support, a wife and young child to support, a stable residence, ties to jurisdiction, a substantial surety and no relevant prior convictions – One applicant has employment to go to if bailed — In each case, exceptional circumstances established but unacceptable risk of committing offence and thereby endangering the safety or welfare of public also established — Low to moderate risk of a catastrophic incident, if bailed, is sufficient to amount to an unacceptable risk — Bail refused — Criminal Code (Cth), ss 11.2A & 119.4; Crimes Act 1914 (Cth), ss 3 & 15AA; Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4A, 4B & 4E.[1]

[1]This judgment was the subject of an interim proceeding suppression order made pursuant to s 20 of the Open Courts Act 2013 (Vic) on 6 August 2018. The order was made for the purpose of ensuring that any potential or empanelled jurors on the proposed joint trial of Murat Kaya and Antonino Alfio Granata did not, before verdict, learn of information that may ultimately not have been adduced at trial, or that may ultimately have been ruled as inadmissible at trial. The order was expressed to have effect until the conclusion of the proposed trials of Murat Kaya and Antonino Alfio Granata, whether by jury verdict or by discontinuance of the prosecution. Both applicants ultimately pleaded guilty and, on 22 February 2019, were sentenced in this Court. (See The Queen v Cerantoinio & Ors [2019] VSC 284.) The suppression order lapsed at that point. But for my own administrative oversight, this judgment (sans this footnote…

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 Kaya & Granata

Details

AGLC: Re Kaya and Granata [2018] VSC 420
Case: [2018] VSC 420
Decision Date: 3 August 2018

CaseChat Overview and Summary

The case of Re Kaya & Granata involved two applicants who were part of a group of six men charged with engaging in conduct preparatory to entering a foreign country with the intention of engaging in hostile activities. The matter was heard by the Australian court which was required to decide on the applicants' eligibility for bail. The key legal issues revolved around whether exceptional circumstances justified granting bail, and whether bail would pose an unacceptable risk of the applicants failing to appear at trial, committing further offences, or endangering the safety or welfare of others.

The court deliberated on the significant delay between the arrest and the potential trial, which was at least two years and seven months, with a potential to extend up to two years and eleven months. If convicted, the delay between arrest and sentencing could be at least two years and ten months, potentially reaching up to three years. The applicants' arguments for bail were bolstered by their family support, stable residences, ties to the jurisdiction, substantial sureties, and lack of prior convictions. One of the applicants also had employment to return to if granted bail. However, the court found that while exceptional circumstances were established, the risk of the applicants committing further offences and thereby endangering public safety was unacceptable. The court considered that even a low to moderate risk of a catastrophic incident if they were bailed was sufficient to amount to an unacceptable risk.

Consequently, the court refused bail for both applicants. The decision was grounded in the provisions of the Criminal Code, Crimes Act, and Bail Act, particularly focusing on sections 11.2A and 119.4 of the Criminal Code, sections 3 and 15AA of the Crimes Act, and sections 1B, 3AAA, 4, 4A, 4B, and 4E of the Bail Act. The refusal of bail was based on the balance between the exceptional circumstances favouring bail and the unacceptable risk to public safety if the applicants were released.

Orders