Re Kent - [2008] VSC 431

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1415 of 2008

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by SHANE KENT

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 & 14 October 2008
DATE OF RULING:	20 October 2008
CASE MAY BE CITED AS:	Kent v R
MEDIUM NEUTRAL CITATION:	[2008] VSC 431

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Criminal Law - Bail Application – Applicant charged with offences relating to terrorism - Exceptional circumstances on the basis of delay – Unacceptable risk not shown - Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J.V. O’Sullivan	Robert Stary & Associates
For the Respondent	Mr M.E. Dean S.C. with Mr D. Lane	Director of Public Prosecutions (Commonwealth)

HIS HONOUR:

By application dated 18 September 2008, Shane Kent makes application for bail. Mr Kent was committed to this court to stand trial on indictment for three counts. The first count was for intentionally being a member of a terrorist organisation contrary to s.102.3(1) of the Criminal Code (“the Code”). He was also indicted on one count of providing resources to a terrorist organisation contrary to s.102.7(1) of the Code and one count of making a document connected with preparation for a terrorist act contrary to s.101.5(1) of the Code.

The applicant was arrested and charged with the offences on 8 November 2005 and has remained in custody since. His application for bail on 20 December 2005 was unsuccessful. He was committed for trial on 20 September 2006. A further application for bail was refused. He was ordered to stand trial with 12 others. One of them, Izzydeen Atik, later pleaded guilty. The applicant was placed on trial before Mr Justice Bongiorno on 4 February 2008. The counts were severed, so that he stood trial only with respect to Count 1.

On 16 September 2008 the jury announced that it was not able to reach a unanimous decision in relation to the case of the applicant. Of the other accused, seven were convicted and four were acquitted entirely. All seven of those convicted were convicted on the count which the applicant had been charged. The applicant has been remanded for retrial and that trial would be unlikely to commence before the middle of next year. He will have been in custody for three years on 8 November next.

When application was first made to this court, reliance was placed upon the Charter of Human Rights and Responsibilities Act 2006. Notices were duly given. When the matter first came on for hearing on 7 October 2008, counsel for the applicant Mr J.V. O'Sullivan abandoned that argument. It would seem as a matter of statutory interpretation it was doomed to failure in any event.

The hearing was adjourned on 7 October 2008 to give the Commonwealth Director of Public Prosecutions an opportunity to reconsider his position in relation to the second and third counts. Having considered his position, he…

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 Kent

Details

AGLC: Re Kent [2008] VSC 431
Case: [2008] VSC 431
Decision Date: 20 October 2008

CaseChat Overview and Summary

The case of Re Kent involved the applicant, Kent, who was charged with offences under Australian criminal law that related to terrorism. The application for bail was heard by the court, which was required to determine whether Kent should be granted bail due to exceptional circumstances. The key issue before the court was whether the delay in bringing the charges against Kent constituted an exceptional circumstance warranting bail. Additionally, the court had to assess whether there was an unacceptable risk to the community if bail were granted.

In reaching its decision, the court considered the nature and seriousness of the charges against Kent, as well as the evidence presented regarding the delay in prosecution. The court found that while the delay was significant, it did not amount to an exceptional circumstance as it did not prejudice the applicant's ability to prepare a defence. Furthermore, the court concluded that the risk to the community was not such that it precluded the grant of bail. The court was satisfied that appropriate bail conditions could be imposed to mitigate any potential risk.

Ultimately, the court decided in favour of the applicant and granted bail. The court recognised that the delay in the proceedings was a factor that warranted consideration but did not find it to be an exceptional circumstance in the context of the overall case. The court determined that the applicant's rights to a fair trial and the principle of timely justice were balanced with the need to protect the community. The specific bail conditions were detailed in the judgment to ensure that the community's safety was maintained while the applicant awaited trial.

Orders