Re RK - [2024] VSC 792

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0280

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by RK	Applicant

---

JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2024
DATE OF ORDERS:	3 December 2024
DATE OF REASONS:	18 December 2024
CASE MAY BE CITED AS:	Re RK
MEDIUM NEUTRAL CITATION:	[2024] VSC 792

---

CRIMINAL LAW – Application for bail – Bail for Aboriginal man – Whether exceptional circumstances exist justifying the grant of bail – Exceptional circumstances shown – Whether unacceptable risk if applicant released on bail – Finding that risk not unacceptable – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3A, 4AA, 4A, 4E, 5AAAA, 5AAA.

---

APPEARANCES:	Counsel	Solicitors
For the applicant	Ms R Samuels	Victoria Legal Aid
For the respondent	Mr G Carr	Victoria Police

HIS HONOUR:

RK (‘the applicant’) seeks bail in relation to sixteen sets of charges brought by various informants.[1] A summary of the charges is set out below, but I have considered all of the alleged offending:
[1]A pseudonym has been used to ensure compliance with s 166 of the Family Violence Protection Act 2008.

(a) The applicant is charged with five counts of unlawful assault (summary, one of them being aggravated), aggravated burglary, intentionally cause injury, recklessly cause injury and threat to kill. Those charges relate to three occasions on which the applicant is alleged to have engaged in violent behaviour against his mother, sister and nephew, each of whom is the subject of a family violence intervention order (‘FVIO’) in respect of which the applicant is the respondent.

(b) The applicant is also charged with persistent contravention of an FVIO, four counts of breach an FVIO by attendance, contravene an FVIO by correspondence and contravene an FVIO by agency communication. Those charges relate to six occasions on which the applicant either attended the residence of his mother or sought to contact her in breach of an FVIO.

(c) The applicant is charged with two counts of stalking, one count of attempted stalking and two counts of use carriage service to harass. Those charges relate to alleged stalking and contact by the applicant in relation to a former partner.

(d) The applicant is alleged to have committed a range of less serious offences, including many charges of fail to answer bail as well as charges of theft, trespass, handle stolen goods, retention of stolen goods and resist police officer. He is also alleged to have committed various offences associated with breaching the conditions of his bail.

The applicant is a 31-year-old Aboriginal man with diagnoses of schizoaffective disorder and schizophrenia and a history of substance use. As at the date of the hearing, he had spent 239 days on remand in relation to the charges. His most recent period of remand was for 46 days. During his previous period of remand, he spent nearly two months…

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 RK

Details

AGLC: Re RK [2024] VSC 792
Case: [2024] VSC 792
Decision Date: 3 December 2024

CaseChat Overview and Summary

In the case of Re RK, the respondent, an Aboriginal man, sought bail in the Supreme Court of Victoria. He faced charges related to a serious criminal offence, and his application for bail was complicated by his Indigenous background and the potential for significant prejudice if released. The court was tasked with determining whether exceptional circumstances existed that would justify granting bail, and whether there was an unacceptable risk to the community if he were released.

The primary legal issues before the court were whether the respondent had demonstrated exceptional circumstances warranting bail and whether the risk to the community, if he were released, was unacceptable. The respondent argued that his Indigenous heritage and the potential for prejudice if he were not granted bail constituted exceptional circumstances. The prosecution contended that the risk to the community was too high due to the seriousness of the charges against him.

The court examined the relevant provisions of the Bail Act 1977, including sections 1B, 3AAA, 3A, 4AA, 4A, 4E, 5AAAA, and 5AAA. It concluded that the respondent had indeed presented exceptional circumstances, considering his Indigenous background and the potential for significant prejudice. Furthermore, the court found that the risk to the community, while serious, was not unacceptable, particularly in light of the stringent bail conditions that could be imposed. Consequently, the court granted bail, subject to a comprehensive set of conditions designed to mitigate any potential risk.

Orders