Re KF - [2022] VSC 349

IN THE SUPREME COURT OF VICTORIA

Not Restricted
Revised

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0152

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an application for bail by KF	Applicant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF RULING:	14 June 2022 (First revision 21 June 2022)
CASE MAY BE CITED AS:	Re KF
MEDIUM NEUTRAL CITATION:	[2022] VSC 349

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CRIMINAL LAW – Bail – Applicant charged with aggravated burglary, intentionally causing serious injury and related charges – Applicant is a Wamba Wamba woman – Already spent 485 days in custody – Applicant’s mother and daughter have both passed away whilst she has been in custody – Mental health issues and trauma background – Lengthy criminal history – Compelling reason established – Whether unacceptable risk – Bail granted – Bail Act 1977 ss 1B, 3A, 3AAA, 4AA, 4E(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Prior	Law and Advocacy Centre for Women
For the Respondent	Mr G Mohammed	Office of Public Prosecutions

HER HONOUR:

Introduction

KF is a 47 years old Aboriginal (Wamba Wamba) woman. She was arrested and remanded on 10 February 2021 charged by informant Senior Constable Ruki Jordan with the following charges:

(a) Charge 1: Aggravated burglary (intent to steal, being reckless as to whether a person was present) on 4 February 2021;[1]
[1]Contrary to s 77(1) of the Crimes Act 1958 (‘Crimes Act’).

(b) Charges 2: Intentionally causing serious injury on 4 February 2021;[2]

(c) Charge 3: Attempted theft from a motor vehicle on 4 February 2021;[3] and

(d) Deal with property suspected of being proceeds of crime on 10 February 2021.[4]

[2]Contrary to s 16 of the Crimes Act.

[3]Contrary to ss 321M and s 74(1) of the Crimes Act.

[4]Contrary to s 195 of the Crimes Act. This is a related summary offence that is also being prosecuted.

Ultimately, an indictment was filed in the County Court of Victoria containing charges 1, 2 and 3: Indictment M10284088.

The Court has received affidavit material from both parties to this application,[5] a letter from Flat Out regarding the applicant,[6] a letter from the Victorian Aboriginal Funeral Service,[7] a letter from Forensicare dated 9 June 2022,[8] and written outline of submissions from the respondent.[9] I note that several reports about the applicant were annexed to the affidavit in support of bail. I have carefully considered all the material filed, in addition to oral submissions and evidence at the hearing in this matter on 10 June 2022.
[5]Affidavit in Support of Bail affirmed by Jillian Prior on 2 June 2022; Affidavit in Response affirmed by Danusha Rachagan on 8 June 2022.
[6]Letter of Caitlin Coleman, Outreach Support & Advocacy Worker dated 3 June 2022.
[7]Letter of Stacey Hamilton, Manager dated 8 June 2022.
[8]Letter from Ann Walsh, Forensicare Community Integration Program Clinician.
[9]Outline of Oral Submissions dated 9 June 2022.

On 5 August 2021, the applicant was refused…

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 KF

Details

AGLC: Re KF [2022] VSC 349
Case: [2022] VSC 349
Decision Date: 14 June 2022 (First revision 21 June 2022)

CaseChat Overview and Summary

In the matter of Re KF, the applicant, a Wamba Wamba woman, has applied for bail from the Supreme Court of Victoria. KF is charged with aggravated burglary, intentionally causing serious injury, and related charges. She has already spent 485 days in custody, during which both her mother and daughter have passed away. KF has a lengthy criminal history and is contending with mental health issues and a background of trauma. The court was required to determine whether the applicant posed an unacceptable risk to the community, warranting continued detention, or whether bail could be granted considering the circumstances.

The primary legal issues the court had to address included the nature and severity of the charges, the length of time the applicant had already spent in custody, the applicant's health and personal circumstances, and the risk she posed to the community. The court also considered whether there were compelling reasons that warranted bail, as well as the need to ensure the safety of the community and the applicant herself. Relevant sections of the Bail Act 1977 were examined to determine the appropriate course of action.

The court found that there were compelling reasons for granting bail, including the applicant's lengthy time already spent in custody and the significant personal losses she had endured. The court also considered the applicant's mental health issues and trauma background, concluding that these factors did not necessarily pose an unacceptable risk to the community. The court found that the risk could be managed through appropriate bail conditions. The court thus determined that it was in the interests of justice to grant bail, with conditions designed to mitigate any risk.

The court ordered the release of the applicant on bail, subject to specific conditions aimed at ensuring the safety of the community and the applicant. These conditions included a requirement to reside at a specified address, to observe a curfew, and to refrain from contact with certain individuals. The court also ordered that the applicant be subject to electronic monitoring and that she participate in any mental health or other support programs as directed.

Orders