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

---

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

---

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.

---

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

HIS HONOUR:

1. 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.

1. 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. 

1. 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.

1. In response to the present application, the respondent has accepted that there has been some miscommunication concerning the requirement that the applicant appear on bail, and that accordingly the applicant had a reasonable excuse why he did not appear on 2 April.  For those reasons, the respondent has, quite properly, taken the position that it does not oppose the application by the applicant for bail. 

1. The application for bail has been supported by a large amount of material.  It is not necessary for me to refer to it in detail.  It is sufficient to indicate that, based on those materials, I am satisfied that the applicant has demonstrated that he is entitled to be released on bail.

1. As the offences, with which the applicant has been charged, are alleged to have been committed while the applicant was subject to a community corrections order imposed in respect of another bail offence, s 4AA(2)(c)(iv) and s 4A(1A) of the Bail Act 1977 require the applicant to establish the existence of exceptional circumstances justifying his release on bail.  In my view, such exceptional circumstances are established on the materials.  They consist of the following matters:

(1)The offences that are the subject of the application for bail do not, of themselves, bespeak a risk of harm or danger to the public if the applicant were released.

(2)If the applicant contests the charges, there will be a substantial period of delay in the hearing of them.  At present, the Magistrates’ Courts are only hearing bail applications and pleas in respect of offenders who are on remand.  Accordingly, if bail were not granted, there is a substantial risk that the applicant might spend more time on remand than any sentence of imprisonment that might be imposed upon him should he be found guilty of the charges. 

(3)As a result of the COVID-19 pandemic, conditions on remand have become quite onerous.  In particular, since his arrest, the applicant has been held in confinement as a form of quarantine since his remand.  His experience of remand has been made more stressful, because he and his family are grieving the death of his sister, who passed away in custody in January of this year. 

(4)The applicant is an Aboriginal man. He is the son of a Dja Dja Wurrung and Yorta Yorta woman and of a Mutti Mutti man. His Aboriginality is relevant by reason of s 3A of the Bail Act.  In particular, the relevant issues that arise from the applicant’s Aboriginality include:

(a)As I have already mentioned, the applicant and his family are grieving the loss of his sister, and his period of remand prevents him being with family and community during the period of grief.  Part of the grieving process for the applicant’s community involves being in the company of family for extended periods after the loss.  In that context, the prohibition on visits by family members and others to prison would render the applicant’s period of remand even more onerous.

(b)As an Aboriginal man, the applicant belongs to a particularly vulnerable section of the community, who are over-represented in the criminal justice system, and who also have poorer health outcomes than non-Aboriginal persons.  In that connection, while he is in custody, the applicant may be at greater risk of serious infection from the COVID-19 virus than otherwise. 

(5)The applicant has an acquired brain injury and symptoms of severe cognitive and mental health issues.  Those factors make him vulnerable in the confines of a custodial environment.  In addition, they would render a period of custody more onerous for him. 

(6)If the applicant is released on bail, he has available to him culturally appropriate assistance and treatment through the Rumbalara Aboriginal Co-operative.  In addition, he has accommodation available to him, as he will be residing with his mother in her home in Mooroopna.

1. I am satisfied that the combination of those circumstances constitutes exceptional circumstances so as to justify the grant of bail. It is not suggested, on behalf of the respondent, that if the applicant were released on bail, he would constitute an unacceptable risk pursuant to s 4D and s 4E of the Bail Act.  Accordingly, the applicant is entitled to a grant of bail on appropriate conditions.

1. It is plain, in any event, that the sole reason for the applicant’s failure to attend at Court on 2 April was due to his correct understanding that he was not required to do so.  That understanding arose from communications between the applicant’s solicitor and the Court, which are quite sensible given the difficult issues confronting the legal system due to the current COVID-19 pandemic.

1. It follows that I shall immediately release the applicant on bail subject to conditions proffered by his counsel , including:

(a)   That the applicant reside with his mother Donna Nelson in Mooroopna.

(b)  That the applicant not consume alcohol or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.

(c)   Within seven days, the applicant contact the Rumbalara Aboriginal Co-operative to receive support and assistance from that organisation.