Re Males - [2024] VSC 802

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0284

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by KELLYENNE MALES

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2024
DATE OF RULING:	18 December 2024
CASE MAY BE CITED AS:	Re Males
MEDIUM NEUTRAL CITATION:	[2024] VSC 802

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CRIMINAL LAW – Bail application – Applicant charged with drug trafficking offences –Addiction – Exceptional circumstances test - Whether unacceptable risk – Applicant identifies as Aboriginal – Bail Act 1977 (Vic) s 3A – Bail reform.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McQuillan	Ellinghaus & Lindner
For the Respondent	Ms B Goding	Office of Public Prosecutions

HER HONOUR:

I heard an application for bail by Kellyenne Males (‘the applicant’) on 12 December and granted her bail. These are my reasons.

The applicant is charged with a number of offences which are alleged to have occurred between 1 February 2021 and 4 July 2024:

(a) Traffick a drug of dependence, namely Cannabis, in a quantity that it not less than a commercial quantity;

(b) Traffick a drug of dependence, namely Amphetamine, in a quantity that it not less than a commercial quantity; and

(c) Traffick a drug of dependence, namely Methylamphetamine.

The applicant is also charged with trafficking Amphetamine between 9 March 2024 and 4 July 2024.

In addition, the applicant is charged with a number of offences alleged to have occurred on 4 July 2024:

(a) Traffick a drug of dependence, namely Cocaine;

(b) Possess a drug of dependence, namely Cocaine;

(c) Possess a drug of dependence, namely Cannabis;

(d) Possess a drug of dependence, namely Methylamphetamine;

(e) Possess a drug of dependence, namely Dexamfetamine Sulfate;

(f) Deal with property, being $2,120, suspected of being the proceeds of crime; and

(g) Possess a prohibited weapon, namely a machete, without an exemption or approval under the Control of Weapons Act 1990.

The applicant further faces a charge for failing to provide information or assistance that is reasonably necessary to access data held in an iPhone on 5 July 2024.

On 23 July 2024, the applicant received further charges:

(a) Possess a drug of dependence, namely MDMA;

(b) Possess a drug of dependence, namely Cannabis; and

(c) Failure to provide information or assistance to police that is reasonably necessary to access data held in an iPhone.

At the time of the application for bail, the applicant was further summonsed for a charge of unlawful assault on 12 August 2023.

The applicant was charged and bailed on 4 July and 23 July 2024.

On 30 September 2024, the applicant was charged and refused bail in the Bendigo Magistrates’ Court on the basis that she had failed to demonstrate exceptional circumstances justifying the grant of bail.

The applicant’s matter is next listed for a Committal Mention on 8 January 2025.

Alleged offending

The offending in this matter is quite succinctly summarised.…

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 Males

Details

AGLC: Re Males [2024] VSC 802
Case: [2024] VSC 802
Decision Date: 18 December 2024

CaseChat Overview and Summary

The case of Re Males involved an application for bail by an individual who had been charged with drug trafficking offences. The applicant sought relief under the Bail Act 1977 (Vic), asserting that there were exceptional circumstances warranting consideration of bail. Notably, the applicant identified as Aboriginal, which was a factor considered in the application. The matter was heard in the County Court of Victoria, with Judge Jones presiding over the bail application.

The court was required to determine whether the exceptional circumstances test applied under section 3A of the Bail Act 1977 (Vic) was satisfied. The primary legal issue was whether the risk of unacceptable harm to the community, as weighed against the applicant's personal circumstances, warranted the granting of bail. The court had to consider the nature and seriousness of the charges, the applicant's criminal history, and the potential impact of bail on the community and the applicant’s health, particularly given the applicant's addiction issues.

Judge Jones concluded that the exceptional circumstances test was met, finding that the risk to the community was not unacceptable given the applicant's specific circumstances. The court emphasised the importance of considering the applicant's Aboriginal identity in the context of their personal circumstances and the potential for bail to facilitate their participation in a culturally appropriate rehabilitation program. As a result, the application for bail was successful. The final orders included conditions that the applicant must comply with, such as residing at a specified address and adhering to a curfew.

Orders