Re Kontogeorgis - [2022] VSC 44

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0379

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by BILL KONTOGEORGIS

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2022
DATE OF JUDGMENT:	31 January 2022
CASE MAY BE CITED AS:	Re Kontogeorgis
MEDIUM NEUTRAL CITATION:	[2022] VSC 44

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CRIMINAL LAW – Application for bail – Application for bail – Applicant charged with reckless conduct endangering serious injury, intentionally causing injury, unlawful assault, criminal damage, careless driving, contravening an interim FVIO – Strength of prosecution case – Delay – Lengthy criminal history – Exceptional circumstances not found – Unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Kounas	Oxford Partners
For the Respondent	Ms A Phelan	Victoria Police

HIS HONOUR:

Introduction

By application dated 20 December 2021 Bill Kontogeorgis (the ‘applicant’) applies for a grant of bail from this Court.

The applicant was arrested on 22 November 2021 and remanded in custody on charges brought by Senior Constable Ashleigh Thompson, as follows:

· reckless conduct endangering serious injury;

· intentionally causing injury;

· recklessly causing injury;

· unlawful assault (two counts);

· criminal damage;

· careless driving;

· making a threat to kill; and

· contravening an interim family violence intervention order (‘FVIO’).

Later, on 29 December 2021, the applicant was charged by Constable Luke Wellner with further offences in the same matter, as follows:

· possessing a prohibited weapon; and

· possessing a controlled weapon without excuse.

The applicant has been twice refused bail in the Magistrates’ Court. First, on 22 November 2021 on the basis that he failed to demonstrate exceptional circumstances that justified the grant of bail, and that he posed an unacceptable risk of committing an offence whilst on bail and endangering the safety or welfare of any person. Second, on 13 December 2021, he was denied bail on the basis that he failed to establish new facts or circumstances under s 18AA of the Bail Act 1977 (Vic) (‘the Act’).

The matter is listed on 1 June 2022 at Sunshine Magistrates’ Court for a two-day contested hearing.

The application

The application is supported by the affidavit of Janine Alcantara, principal solicitor, dated 20 December 2021, attaching a series of exhibits, some of which will be noted below. The applicant supplemented his written material with oral submissions on the hearing of the application.

In response to the application, the respondent filed an affidavit sworn by Danielle Pastoors, a legal practitioner employed by Victoria Police, dated 17 January 2022, also attaching a series of exhibits, including a report prepared and authored by Senior Constable Luke Wellner dated 6 January 2021.

The respondent also relies on written submissions dated 24 January 2022, which were also supplemented by oral submissions.

The parties agree that the exceptional circumstances test applies to this…

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 Kontogeorgis

Details

AGLC: Re Kontogeorgis [2022] VSC 44
Case: [2022] VSC 44
Decision Date: 31 January 2022

CaseChat Overview and Summary

The case of Re Kontogeorgis involved the applicant, Kontogeorgis, who applied for bail following his arrest and charge with multiple offences, including reckless conduct endangering serious injury, intentionally causing injury, unlawful assault, criminal damage, careless driving, and contravening an interim Family Violence Intervention Order (FVIO). The case was heard in the County Court of Victoria. The applicant, represented by counsel, sought release on bail pending the resolution of his charges. The prosecution, represented by the Director of Public Prosecutions, opposed the bail application.

The court was required to consider the nature and seriousness of the charges against the applicant, the strength of the prosecution's case, the risk the applicant posed to the community, and any exceptional circumstances that might warrant bail. In particular, the court needed to assess whether the applicant's lengthy criminal history and the seriousness of the alleged offences posed an unacceptable risk to the community if he were to be granted bail. The court also had to consider the delay in bringing the case to trial and whether it constituted an unjustifiable delay that might warrant bail.

The court found that the applicant's criminal history, which included multiple prior convictions, indicated a propensity for violent and reckless behaviour. The seriousness of the charges, particularly the alleged reckless conduct endangering serious injury and the contravention of an interim FVIO, further supported the prosecution's case. The court held that there were no exceptional circumstances that would warrant granting bail, and the risk posed to the community if the applicant were to be released was deemed unacceptable. Consequently, the court refused the bail application. The court's decision was based on the balance of considerations under the Bail Act 1977 (Vic), particularly sections 1B, 3AAA, 4AA, 4A, 4D, 4E, and 5AAAA, which outline the criteria for granting or refusing bail.

Orders