Re Kennedy - [2020] VSC 187

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0067

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by Dwayne Kennedy

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF RULING:	17 April 2020
CASE MAY BE CITED AS:	Re Kennedy
MEDIUM NEUTRAL CITATION:	[2020] VSC 187

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CRIMINAL LAW – Bail – Applicant failed to attend court while on bail – Apparent miscommunication whether applicant required to attend Court in light of Practice Direction No 3 of 2020 issued by Magistrates’ Court of Victoria – Bail application not opposed by prosecution – Exceptional circumstances established – Relevance of COVID-19 pandemic – Alleged charges do not pose risk of harm or danger to public – Applicant suffers from severe cognitive impairment and mental health issues – Applicant identifies as an Aboriginal man – Bail Act 1977 ss 3A, 4AA(2)(c)(iv), 4A(1A), 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Radzaj	Kurnai Legal
For the Respondent	Mr J Kibel	Victoria Police

HIS HONOUR:

The applicant has made an application to this Court for bail. That application is not opposed. I propose to grant the applicant bail forthwith. It is appropriate that I briefly state the reasons for that decision.

On various dates before April 2020, the applicant was arrested and released on bail on a total of thirteen charges that arose out of seven separate instances of offending. He was originally granted bail in those matters to attend the Melbourne Magistrates’ Court on 2 April 2020. As a result of the present COVID-19 pandemic and the consequent restrictions on movement of persons in the community, on 24 March 2020 the Magistrates’ Court of Victoria issued a Practice Direction No 3 of 2020 relating to bail and related matters. As a consequence, on 27 March 2020, the solicitors acting for the applicant contacted the Magistrates’ Court to clarify whether the applicant was required to appear on 2 April. In response, the applicant’s solicitor was informed that an appearance would only be necessary if the applicant was in custody. As a result, the applicant correctly understood that he was not required to attend on the next listed date for his outstanding matters. Accordingly, he did not attend the Court on that date. In response, warrants were issued for his arrest, and he was remanded in custody on 3 April.

The applicant then applied for bail to the Melbourne Magistrates’ Court on 4 April 2020. The application was opposed, and it was unsuccessful. He made a further application to that court for bail on 9 April. That application was also opposed, and consequently it was adjourned to be heard before that Court on 20 April. In the meantime, on 9 April, the applicant made the present application to this Court that he be granted bail.

In response to the present application, the respondent has accepted that there has been some…

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 Kennedy

Details

AGLC: Re Kennedy [2020] VSC 187
Case: [2020] VSC 187
Decision Date: 17 April 2020

CaseChat Overview and Summary

The applicant, Mr Kennedy, faced the Magistrates’ Court of Victoria in relation to a bail matter. Mr Kennedy had failed to attend court while on bail, leading to an application for his bail to be revoked. The apparent issue was a miscommunication regarding whether he was required to attend court in light of Practice Direction No 3 of 2020. The prosecution did not oppose the bail application. The court needed to determine whether exceptional circumstances existed to warrant the continuation of bail and whether the alleged charges posed a risk of harm or danger to the public. Additionally, the court had to consider Mr Kennedy's severe cognitive impairment, mental health issues, and his identification as an Aboriginal man.

The court examined the relevant sections of the Bail Act 1977, including sections 3A, 4AA(2)(c)(iv), 4A(1A), 4D, and 4E. The court noted that exceptional circumstances existed due to the miscommunication and the impact of the COVID-19 pandemic on court attendance. The applicant did not pose a risk of harm or danger to the public. The court also took into account Mr Kennedy's severe cognitive impairment and mental health issues, as well as his identification as an Aboriginal man. These factors supported the granting of bail, as they indicated a lower risk of reoffending and a need for support in navigating the legal process.

In conclusion, the court granted the applicant's bail, taking into account the exceptional circumstances of the case, the impact of the COVID-19 pandemic, and Mr Kennedy's severe cognitive impairment and mental health issues. The court determined that the applicant did not pose a risk of harm or danger to the public and that his identification as an Aboriginal man warranted special consideration. The prosecution did not oppose the bail application, and the court found that the applicant's failure to attend court was not due to a lack of intent to participate in the legal process.

The final orders of the court were that Mr Kennedy's bail be continued, subject to the terms and conditions previously set out. The court emphasised the importance of clear communication with the applicant and his legal representatives to prevent future misunderstandings. The court also noted that ongoing support for Mr Kennedy's cognitive impairment and mental health issues would be crucial in ensuring his successful navigation of the legal process.

Orders