JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	6, 7 DECEMBER 2016
DATE OF RULING:	13 DECEMBER 2016
CASE MAY BE CITED AS:	APPLICATION FOR BAIL BY HL
MEDIUM NEUTRAL CITATION:	[2016] VSC 750

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CRIMINAL LAW – Application for bail by a child – Show cause situation – Indictable offence charge while on bail – Whether unacceptable risk – Multiple charges – Human rights – Conditions of remand – Bail Act 1977 (Vic), ss 3B, 4, 5 – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 17(2), 22(1) and (3), 26(3), 32(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Austin	Victoria Police
For the Accused	Mr J Williams	Victoria Legal Aid
For the Victorian Attorney-General (intervening)	Mr L Brown	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. Present charges............................................................................................................................. 1

C.. Criminal history............................................................................................................................ 3

D.. Applicant’s evidence of relevant matters................................................................................. 4

E... Relevant provisions of the Bail Act.......................................................................................... 8

F... Intervention by the Attorney-General...................................................................................... 9

G.. Evidence in opposition............................................................................................................. 10

H.. Relationship between the Bail Act and the Charter............................................................ 15

I.... Questions for determination with respect to the Charter................................................... 15

I.1.... Section 32(1) of the Charter............................................................................................... 16
I.2.... Obligation of the court under Part 2 of the Charter..................................................... 17
I.3.... Alleged breaches of the applicant’s rights under the Charter.................................... 18

J.... Determination of the application............................................................................................ 20

K.. Further conduct of the matter................................................................................................... 24

HIS HONOUR:

A. Introduction

The applicant, HL,[1] applies for bail. He is 16 years old[2] and, at the time of his most recent arrest, resided with his mother in Cheltenham.
[1]A pseudonym, given the applicant’s age.
[2]He was born in Kenya on 3 March 2000.

B. Present charges

The applicant was first charged with the matters presently pending before the courts when he was 14 years old. In October 2014, he was charged with armed robbery, robbery, assault in company and threats to inflict serious injury. Upon being charged, he was released on bail by the informant on an undertaking to appear at the Frankston Children’s Court on 20 November 2014.

On 13 November 2014, he was again charged; this time with 2 counts of theft of a motor vehicle. He was released on bail on the undertaking to appear before the Frankston Children’s Court on 11 December 2014.

Eleven days later, the applicant was again arrested, this time charged with unlawful assault and wilful damage. He was released on bail on the undertaking to appear in the Moorabbin Children’s Court on 2 February 2015.

On 18 December 2014, the applicant appeared in the Melbourne Children’s Court. He was placed on a 12 month youth supervision order. However, he was permitted to travel and remain overseas while under the supervision order. He was remanded…

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 APPLICATION FOR BAIL BY HL

Details

AGLC: APPLICATION FOR BAIL BY HL [2016] VSC 750
Case: [2016] VSC 750
Decision Date: 13 DECEMBER 2016

CaseChat Overview and Summary

In the matter of HL, an application for bail was presented to the Children’s Court of Victoria. The respondent, HL, a minor, is seeking release on bail following charges of serious indictable offences while currently on bail for other charges. The dispute revolves around whether HL's continued detention is necessary due to the unacceptable risk posed by releasing him, considering his alleged involvement in serious criminal activities and the potential impact on the community.

The court was tasked with determining whether HL's detention was justified given the risk he might pose to the community and the likelihood of him appearing in court. Key considerations included the nature and gravity of the new charges, HL's history with bail, and the potential impact on his well-being and human rights. The court had to weigh these factors against the presumption in favour of bail for children, as provided by the Bail Act 1977 (Vic), and the principles enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Upon reviewing the evidence and arguments presented, the court concluded that the risk HL posed to the community was significant enough to warrant his continued detention. The gravity of the new charges, combined with HL's previous failure to comply with bail conditions, led the court to determine that there was an unacceptable risk of reoffending if released. The court considered the human rights implications but found that the need to protect the community outweighed these considerations in this instance.

The court denied bail, ordering HL to remain in remand pending further court appearances. This decision was based on the need to ensure public safety and the potential risk HL posed if released on bail.

Orders