Re Keene - [2021] VSC 864

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0344

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by CHRISTOPHER KEENE

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2021
DATE OF JUDGMENT:	17 December 2021
CASE MAY BE CITED AS:	Re Keene
MEDIUM NEUTRAL CITATION:	[2021] VSC 864

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CRIMINAL LAW – Application for bail – Single charge of attempt to pervert the course of justice – Applicable test – Respondent submits ‘exceptional circumstances’ test applies – Schedule 2, Clauses 1(a), (b), (c) and (d) – Meaning of ‘at large’ – Meaning of ‘serving a sentence’ – Applicant prima facie entitled to bail – Unacceptable risk – Lengthy criminal history and outstanding interstate warrants – Applicant on Community Correction Order (‘CCO’) and able to re-engage with that CCO – Delay – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3A, 4AA, 4E and Schedule 2, Clause 1.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D McGlone	Emma Turnbull Lawyers
For the Respondent	Ms T Bolton	Office of Public Prosecutions

HER HONOUR:

Christopher Keene applies for bail on one charge of attempt to pervert the course of justice.

The alleged offending

In March 2020, the applicant was in custody together with John Verdesoto (‘Verdesoto’). The applicant was on remand for charges involving family violence against his then partner. The informant for those matters was Monaghan (‘the first Monaghan matters’).

On 23 March 2020, Verdesoto called Tracey Stephen (‘Stephen’) from custody and told her that his friend ‘Chris Keene’ needs to provide an address to be released from custody. Verdesoto outlined that he would give the applicant Stephen’s address, but he would not actually be living with her. Verdesoto is Stephen’s landlord.

On 2 April 2020, a bail application was heard in the County Court. On 6 April 2020, bail was refused. One reason for the refusal was that the address was wholly unsuitable, as it was proposed the applicant would reside back with his partner who was the alleged victim of the family violence charges.

On 24 April 2020, Verdesoto again called Stephen from custody, during which they discussed Stephen providing a bail address, and how she could say she knew the applicant.

On 27 April 2020, Verdesoto called Stephen and put the applicant on the phone. The applicant asked her if she had any questions, and she said the solicitor told her she might have to appear in court and “they’ll ask me how do I know you and how long have I known you”. Stephen said John (Verdesoto) had suggested she say that they met through her ex-husband, and recently reconnected. The applicant said that sounded like a good plan.

On 1 June 2020, Stephen swore an affidavit along the lines discussed in the above phone call.

On 11 June 2020, a further bail application commenced in the County Court. The affidavit of Stephen was…

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 Keene

Details

AGLC: Re Keene [2021] VSC 864
Case: [2021] VSC 864
Decision Date: 17 December 2021

CaseChat Overview and Summary

In the case of Re Keene, the applicant sought bail in relation to a single charge of attempting to pervert the course of justice. The matter was heard in the Magistrates' Court of Victoria. The central issue before the court was whether the applicant was prima facie entitled to bail, and if so, whether it would be inappropriate to grant bail due to unacceptable risk factors, including the applicant's lengthy criminal history and outstanding warrants in another jurisdiction.

The court considered the applicable test for bail under the Bail Act 1977, particularly in light of the arguments presented by the respondent that the ‘exceptional circumstances’ test applied as per Schedule 2, Clauses 1(a), (b), (c) and (d). The court examined the definitions of ‘at large’ and ‘serving a sentence’ to determine the applicability of these clauses. The court concluded that the applicant was prima facie entitled to bail, but the risk of reoffending was significant due to the applicant’s criminal history and the presence of outstanding warrants. However, the applicant was currently on a Community Correction Order (CCO), which could be reinstated if bail was granted. The court also considered the delay in processing the bail application and weighed this against the risk factors.

Ultimately, the court granted bail, finding that while the risk was significant, it was not insurmountable given the applicant’s ability to re-engage with the CCO. The court noted that the balance of considerations did not justify denying bail. The court exercised its discretion under sections 1B, 3AAA, 3A, 4AA, 4E and Schedule 2, Clause 1 of the Bail Act 1977, and granted bail with conditions designed to mitigate the risk of reoffending.

Orders