Re Kuol - [2024] VSC 596

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0229

IN THE MATTER of the Bail Act 1977

- and –

IN THE MATTER of an Application for Bail by Alor KUOL

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2024
DATE OF JUDGMENT:	11 October 2024
CASE MAY BE CITED AS:	Re Kuol
MEDIUM NEUTRAL CITATION:	[2024] VSC 596

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CRIMINAL LAW – Bail – Charge of stalking – Applicant with long-established diagnosis of schizoaffective disorder – Ongoing treatment challenges while in custody – Limited insight into illness and need to comply with medication – Significant criminal history including bail-related offending - Availability of accommodation and supports – Plea hearing listed for 21 October 2024 - Compelling reason not established – Unacceptable risk made out in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S O’Connell	Victoria Legal Aid
For the Respondent	Ms N Cicchiello	Victoria Police Legal Practice Group

HIS HONOUR:

Introduction

The applicant applies for bail in respect of a single charge of stalking.

It is agreed between the parties that I must refuse bail unless the applicant satisfies me that a compelling reason exists that justifies the grant of bail. This is because the applicant is charged with stalking and has within the preceding 10 years been convicted of an offence during the course of committing which he used or threatened to use violence against any person.[1]
[1]Bail Act 1977, Schedule 2, Clause 8(a).

Bail is opposed by the respondent. It is contended that a compelling reason has not been shown to exist. In the alternative, it is submitted by the respondent that the applicant poses an unacceptable risk in a number of respects.

Procedural history

The stalking charge was laid against the applicant on 19 June 2024.The applicant was arrested on 1 July 2024 in respect of this matter. He was issued with an application for a personal safety intervention order (‘PSIO’) on this date. He was released on bail on his own undertaking to appear on the stalking charge on 3 July 2024 at Werribee Magistrates’ Court. He was also, on 1 July 2024, released on bail to appear at the same court on the return date of the PSIO, also on 3 July 2024. That grant of bail was subject to conditions reflecting the full no-contact terms of the eventual PSIO. Those conditions prohibited the attendance of the applicant at his previous place of residence, which was also the residential address of the complainant in the stalking charge.

Shortly after being released on bail, the applicant attended at his home address and gained entry to his room through an unlocked window. His attendance at the address in contravention of his bail conditions was reported to police by the building manager. There is no evidence that the applicant sought to make any contact with the…

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 Kuol

Details

AGLC: Re Kuol [2024] VSC 596
Case: [2024] VSC 596
Decision Date: 11 October 2024

CaseChat Overview and Summary

The applicant in the matter, Kuol, applied for bail in the context of a stalking charge. The case was heard in the relevant court, where Kuol's long-standing diagnosis of schizoaffective disorder, coupled with ongoing treatment difficulties while in custody, was a central concern. The court had to consider Kuol's limited insight into their illness and the necessity of adhering to medication, alongside a significant criminal history that included instances of bail-related offences. Another key factor was the availability of accommodation and support services. The plea hearing was scheduled for 21 October 2024. The court needed to determine whether there was a compelling reason to grant bail, and if the risk posed to the community was acceptable.

The legal issues before the court involved balancing the applicant's right to liberty against the need to protect the community. The court examined the statutory criteria under the Bail Act 1977, including sections 1B, 3AAA, 4, 4AA, 4C, 4D, and 4E. It assessed whether a compelling reason existed to exercise the court's discretion in favour of bail, and whether the risk to the community was such that it precluded bail. The court concluded that no compelling reason had been established and that there was an unacceptable risk to the community if bail were granted.

The court's reasoning hinged on the applicant's history of non-compliance with bail conditions and the inherent risks associated with their mental health condition. Despite the availability of accommodation and support, the court found that these were insufficient to mitigate the risk posed by Kuol. Given the severity of the stalking charge and the potential harm to the alleged victim, the court refused bail. The court's decision was firmly rooted in the need to protect the community and ensure that any risk of reoffending was minimised.

The final orders of the court were that bail be refused to Kuol, pending the plea hearing on 21 October 2024. The court's determination reflected a cautious approach, prioritising public safety and the integrity of the judicial process.

Orders