Regina v Kennelly

[2004] NSWSC 769

CITATION:	REGINA v. KENNELLY [2004] NSWSC 769
HEARING DATE(S):	Monday 23 August 2004
JUDGMENT DATE:	23 August 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Greg James J at 1
DECISION:	Bail refused
LEGISLATION CITED:	Bail Act 1978
CASES CITED:	N/A
PARTIES :	REGINA v. KENNELLY, Peter James Paul
FILE NUMBER(S):	SC No. 2004/2052
COUNSEL:	Crown: M. Laffan (Sol) App: In person
SOLICITORS:	Crown: DPP App: N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

MONDAY 23 AUGUST 2004

No. 2004/2052

REGINA v. PETER JAMES PAUL KENNELLY

JUDGMENT
(On application for bail)

1 HIS HONOUR: This is an application for bail pending appeal by Peter James Paul Kennelly. Mr. Kennelly appears for himself. He has informed me of his dissatisfaction with his lawyers and his reason for it.

2 He has been convicted of 16 counts of break, enter and steal, one count of steal motor car and one count of break and enter with intent to steal. On sentencing, there were a further 25 burglary counts, three counts of break and enter with intent to steal and one count of being found with intent to commit an indictable offence all taken into account on a Form 1. Mr. Kennelly received a total effective sentence of five years, six months, with a non-parole period of 12 months. The earliest release date was apparently 11 June 2006. I am not quite sure how that could occur unless that sentence was made cumulative or at least the non-parole period portion of it cumulative on an earlier sentence. The matters are listed before the Court of Criminal Appeal on 7 October 2004 for hearing of an application for leave to appeal against the sentences.

3 Mr. Kennelly apparently had been the subject of a suspended sentence from the Drug Court when the police had charged him with the offences to which he pleaded guilty, the sentences for which are now the subject of appeal to the Court of Criminal Appeal. One of those offences however, has occasioned to Mr. Kennelly, some considerable concern. It appears that he had pleaded guilty to an offence of break, enter and steal, which involved the offender leaving blood at the scene. When the police questioned him, he says he cooperated and indeed refers to a statement made by him in respect of that offence when --

APPLICANT: There was no --

4 HIS HONOUR: -- he was asked if he had committed it, and said in effect he could not remember but it may well have been him.

APPLICANT: “If my blood is there I must have done it.”

5 HIS HONOUR: He said words to the effect that “if my blood is there I must have done it”. At that time he was informed that the DNA report showed that it was his blood.

APPLICANT: That’s correct.

6 HIS HONOUR: He says it has come to light that in fact the DNA involved in that offence was the DNA of another.

APPLICANT: That’s correct.

7 HIS HONOUR: He says he was taken back by the police to the Drug Court and the conviction annulled. He claims that the same police are involved in all of the matters on which he is appealing and that as a result, all convictions and sentences are tainted. He has not appealed so far at least, against his conviction for any of those matters. Were he to do so, it is very likely that the hearing date of 7 October would be lost and the matter would have to go over to the new year for the hearing of an appeal against conviction.

8 In the meantime, he has been charged with a further five offences of break, enter and steal, four of which are before the Sydney District Court for trial on 13 September. The fifth charge is awaiting the service of the Crown brief and is listed for mention at the Burwood Local Court on 20 September 2004. The Crown contends bail is refused in respect of all those matters. The applicant says that he has been granted unconditional bail in respect of all those matters.

APPLICANT: That’s correct.

9 HIS HONOUR: Before me, the Crown has proceeded on the basis of the bail chronology and short written submissions without tendering the balance of the material, having regard to the fact that Mr. Kennelly is unrepresented.

10 The necessity is of course, it being an application for appeal bail, that the applicant needs to make out special or exceptional circumstances which justify the grant of bail. See s.30AA of the Bail Act. I put aside the conflict over whether bail has been granted for the other offences.

11 Whatever may be said about the annulled conviction for one offence in that procession of offences which have given rise to the appeals to the Court of Criminal Appeal and treating charitably the application, as though the appeal to the Court of Criminal Appeal was against conviction and sentence rather than merely in respect of the sentences which appear remarkably unlikely to be disturbed, having regard to the overall length and to the short non-parole period, I am nonetheless not persuaded that the applicant has shouldered the burden under s.30AA. I do not see that the appeal is, within the test required by the relevant authorities, clearly likely to succeed. I am not at all clear that it is even arguable. Section 30AA is a complete legal bar to the applicant getting bail, pending the hearing of the appeal.

12 The application is therefore refused.

APPLICANT: Unbelievable, dead-set unbelievable. Do I have to wait in gaol ‘til someone else’s DNA matches the blood I’ve been convicted on again? Yeah thought so. What’s your name your Honour?

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Last Modified: 08/24/2004