Re KDP - [2009] VSC 416

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 1494 of 2009

IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for bail by KDP

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2009
DATE OF RULING:	21 September 2009
CASE MAY BE CITED AS:	Re KDP
MEDIUM NEUTRAL CITATION:	[2009] VSC 416

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CRIMINAL LAW – Application for bail – Unacceptable risk – Imposition of conditions make risk acceptable – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Dunn QC	Galbally & O’Bryan
For the Crown	Mr M Regan	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by KDP to whom I will refer as ‘the applicant’. The applicant is charged with a number of offences which are said to have occurred on three separate occasions. The first group of charges consist of two charges of criminal damage, one charge of reckless conduct endangering life and one of reckless conduct endangering serious injury. The second group include a charge of arson and six charges of intentionally causing a bushfire. The third occasion is a charge of incitement.

None of these offences require the applicant to show cause why his detention in custody is not justified under s 4 of the Bail Act. The result is that the applicant is prima facie entitled to a grant of bail unless the Court is satisfied pursuant to s 4(2)(d)(i) that there is an unacceptable risk that if released on bail he would either:

· fail to surrender himself into custody in answer to his bail;

· commit an offence whilst on bail;

· endanger the safety or welfare of members of the public; or

· interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

Under s 4(3) of the Bail Act, in assessing whether the circumstances constitute an unacceptable risk I must have regard to all matters appearing to be relevant and in particular to such of the following considerations as appear to be relevant, that is to say—

(a)the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused person;
(c)the history of any previous grants of bail to the accused person;
(d)the strength of the evidence against the accused person;
(e)the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail.

Circumstances of the offences

I will deal now with the circumstances of the offences alleged.

From approximately July 2007 until around the time of the alleged offending, the applicant was in a relationship with Jessica Ward-Fitzpatrick. The relationship was described as ‘volatile’ by the Crown. It is alleged that in June 2008, Ms Ward‑Fitzpatrick had an affair with another man, Peter Kyle, which was not disclosed to the applicant.

On 10 December 2008, the applicant was apparently informed of the affair by a…

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 KDP

Details

AGLC: Re KDP [2009] VSC 416
Case: [2009] VSC 416
Decision Date: 21 September 2009

CaseChat Overview and Summary

In the case of Re KDP, the applicant sought bail in the Supreme Court of Victoria. The applicant was facing criminal charges, and the state opposed the grant of bail due to concerns about the risk the applicant posed to the community. The court was required to determine whether the risk could be mitigated by imposing bail conditions that would make the risk acceptable. The central legal issue was whether the court could impose conditions that would ensure the applicant's compliance with the bail terms and thereby reduce the risk to the community.

The court examined the nature and seriousness of the charges against the applicant, the applicant's criminal history, and the likelihood of the applicant complying with any bail conditions. The court considered the potential impact of the applicant's release on the community and the risk of reoffending. The court also considered the applicant's personal circumstances, including their ties to the community, employment, and support network. After weighing all the relevant factors, the court determined that the risk could be mitigated by imposing specific bail conditions. These conditions were designed to ensure the applicant's compliance with the bail terms and to reduce the risk to the community.

Based on the court's analysis, it concluded that the risk could be made acceptable by imposing the specified bail conditions. The court granted the applicant bail, subject to those conditions. The court emphasised the importance of the applicant's compliance with the bail terms and warned that any breach could result in the revocation of bail and the applicant's arrest. The court also noted that the applicant's release on bail did not prejudice the state's case against them.

Orders