Re McKay - [2020] VSC 558

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0196

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by SHANE McKAY

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2020
DATE OF JUDGMENT:	1 September 2020
CASE MAY BE CITED AS:	Re McKay
MEDIUM NEUTRAL CITATION:	[2020] VSC 558

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CRIMINAL LAW – Bail – 27 year old Aboriginal applicant - Dishonesty, assault, breach of family violence intervention order, drugs, and reckless conduct charges – Applicant on multiple grants of bail at time – Significant criminal history – Poor compliance with previous community correction orders – Strong support from former foster mother and stable residence on offer – CISP support - Exceptional circumstances not established – Unacceptable risk – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 4, 4AA, 4A, 4D, 4E, 5AAAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Patrick W Dwyer Criminal Law
For the Respondent	Mr G Carr	Legal Services Department, Victoria Police

HIS HONOUR:

Introduction

The applicant applies for bail in respect of the following 38 charges laid by the informant/respondent Detective Senior Constable Young:

1.Theft of a motor vehicle;
2.Committing an indictable offence whilst on bail (six charges);
3.Contravening a family violence intervention order (‘FVIO’ – 16 charges);
4.Unlicensed driving;
5.Displaying incorrect number plates;
6.Recklessly causing injury;
7.Assault with a weapon (screwdriver);
8.Reckless conduct endangering life;
9.Criminal damage;
10.Handling stolen goods;
11.Possessing a drug of dependence (methylamphetamine);
12.Possessing a controlled weapon;
13.Stating a false name when requested; and
14.Persistent contravention of a FVIO (five charges).

The applicant was remanded in custody on these charges on 19 June 2020. On 28 July 2020, bail was refused to the applicant in the Ballarat Magistrates’ Court, the sitting magistrate being satisfied of the existence of a compelling reason in justification for bail, but being satisfied that there was an unacceptable risk that the applicant would commit an offence while on bail.

Before me, it was agreed between the parties that notwithstanding the test considered in the court below, the correct test to apply in this case is the exceptional circumstances test, because the applicant is charged with the commission of Schedule 2 offences alleged to have been committed while he was on bail for further Schedule 2 offences.

The charges the subject of this application are listed for a contested hearing on 23 and 24 March 2021.

Other outstanding charges

Important background to the charges in question is constituted by a large number of charges laid by no fewer than six individual informants, in respect of which the applicant was either on bail or subject to summons at the time of his alleged offending. These charges are as follows:

On bail

(a) Informant Senior Constable Hughes – alleged offending and charge date 16 November 2019. Bail granted in the Ringwood Magistrates’ Court on 12 December 2019 and varied 28 January 2020.

(i) Theft of…

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 McKay

Details

AGLC: Re McKay [2020] VSC 558
Case: [2020] VSC 558
Decision Date: 1 September 2020

CaseChat Overview and Summary

In the case of Re McKay, the applicant, a 27-year-old Aboriginal man with a significant criminal history, faced multiple charges including dishonesty, assault, breach of a family violence intervention order, drug possession, and reckless conduct. The applicant had been on various grants of bail at the time and was appearing before the court to seek further bail. The primary legal issues before the court were whether the applicant had established exceptional circumstances warranting a grant of bail, and if not, whether the applicant presented an unacceptable risk to the community.

The court considered the applicant's criminal history, which included poor compliance with previous community correction orders, and his current charges, which involved serious offences. The applicant's submissions included strong support from his former foster mother and the availability of stable residence. Additionally, the applicant had access to support from the Community Intervention and Support Program (CISP). Despite these factors, the court found that exceptional circumstances had not been established. The court also concluded that the risk of the applicant reoffending or failing to comply with bail conditions was unacceptable, particularly given the seriousness of the new charges.

In light of these findings, the court exercised its discretion under the Bail Act 1977 to refuse the applicant's application for bail. The court's reasoning was grounded in the need to protect the community and ensure that justice was served in the circumstances. The court did not find the applicant's support network and proposed living arrangements sufficient to mitigate the identified risks. The applicant was therefore denied bail.

Orders