Re Kennedy [2020] VSC 187

• Bail application for Aboriginal man during COVID restrictions
• Requirement to establish exceptional circumstances include issues arising from applicant’s Aboriginality

[6] … (a) As I have already mentioned, the applicant and his family are grieving the loss of his sister, and his period of remand prevents him being with family and community during the period of grief. Part of the grieving process for the applicant’s community involves being in the company of family for extended periods after the loss. In that context, the prohibition on visits by family members and others to prison would render the applicant’s period of remand even more onerous.

(b) As an Aboriginal man, the applicant belongs to a particularly vulnerable section of the community, who are over-represented in the criminal justice system, and who also have poorer health outcomes than non-Aboriginal persons. In that connection, while he is in custody, the applicant may be at greater risk of serious infection from the COVID-19 virus than otherwise.