APPLICATION FOR BAIL BY HL
[2016] VSC 750
•13 DECEMBER 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0181
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by HL
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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 to appear at the Frankston Children’s Court on 12 February 2015.
On 23 December 2014, the applicant was given permission to travel to South Sudan, where his father resided, and still resides. The applicant had not seen his father since the applicant came to Australia when he was 3 years old.
The applicant was permitted to travel from 28 December 2014 to 26 January 2015. On 16 January 2015, the applicant’s mother contacted Youth Justice. She stated she had returned from South Sudan with her 2 youngest children, but the applicant remained in South Sudan. She said he would possibly be returning in February 2015.
From February 2015 to mid July 2016, the applicant failed to appear on a number of occasions by reason of his continued residency in South Sudan. The applicant attended boarding school in Uganda for some of this time. Throughout his absence, both his mother and father were in regular contact with Youth Justice.
Towards the end of this period, in response to further fighting with respect to the ongoing conflict in South Sudan, the applicant produced his Australian passport to the British embassy in South Sudan. He, with his mother, secured his return to Australia.
On 28 July 2016, the applicant was arrested upon his re-entry to Australia at Melbourne International Airport. He applied for bail in the Broadmeadows Magistrates’ Court.
On that occasion, the applicant’s mother advised the court that she had taken the applicant overseas as part of a healing process. She also said, amongst other things, that she had lacked the funds to bring the applicant back to Australia for his court dates and had to gather funds to arrange to travel to South Sudan to bring him back.
The application for bail was unsuccessful. The applicant was remanded in custody until 9 August 2016.
On 5 August 2016, the applicant applied for bail in this court. He was released on conditions that included that he reside with his mother in Cheltenham. A curfew was imposed from 9 pm to 7 am each day. The applicant was only permitted to leave the residential premises during those hours in the company of his mother.
Whilst on bail, the applicant was arrested and charged on both 7 and 8 October 2016. The charges involved shop theft and theft of a motor vehicle. He was again granted bail, on similar conditions, but with a daily curfew of 6 pm to 6 am.
On 9 November 2016, the applicant was charged with certain offences whilst on bail. These were alleged to have occurred on 10 September 2016. Those charges included:
(1) Armed robbery.
(2) Theft of a motor vehicle.
(3) Assault with a weapon.
(4) Committing an indictable offence whilst on bail.
As stated above, each of the matters referred to remains pending. The applicant has been remanded to various dates with respect to these charges, the next in time being 15 December 2016.
C. Criminal history
The applicant’s criminal record includes the following:
(1)On 8 October 2013, the applicant, amongst other things, was found guilty of committing 5 counts of robbery and 2 counts of theft, without conviction.
(2)On 11 March 2014, the applicant, amongst other things, was found guilty of committing robbery and 2 attempted robberies, without conviction.
(3)On 20 October 2014, the applicant was found guilty of contravening a conduct condition of bail, without conviction.
(4)On 18 December 2014, the applicant was found guilty of committing 2 attempted robberies and a robbery, without conviction.
(5)Also on 18 December 2014,[3] the applicant, amongst other things, was found guilty of committing 2 assaults on police, 4 robberies, 1 attempted robbery, and 3 counts of contravening a conduct condition of bail, without conviction.
[3]These matters were recorded separately.
D. Applicant’s evidence of relevant matters
The applicant was placed at Parkville Youth Justice Centre (“Parkville”) on or about 9 November 2016. Parkville was specifically designed as a remand centre for children, with the best interests of the child as its focus.
On 13 and 14 November 2016, a serious disruption occurred at Parkville, with some of the residents being involved in “riots”.
On 14 November 2016, the applicant was transferred from Parkville to Malmsbury Youth Justice Precinct (“Malmsbury”).
If a child is remanded, she or he must be placed in a remand centre.[4] A “remand centre” is defined as a remand centre established under s 478(a) of the Children, Youth and Families Act 2005 (Vic).[5] The Governor in Council may, by notice published in the Government Gazette, establish remand centres for the detention of children awaiting trial or the hearing of a charge.[6]
[4]Children, Youth and Families Act 2005 (Vic), s 347(1).
[5]Children, Youth and Families Act 2005 (Vic), s 3.
[6]Children, Youth and Families Act 2005 (Vic), s 478(a).
On 15 November 2016, Mill Park Police Station Cells were gazetted as a remand centre.
On 17 November 2016, a unit of Barwon Prison was the subject of a gazettal.[7] As a result, the unit at Barwon Prison, known as “Grevillea Unit”, was converted from an adult prison to a children’s remand centre (“Barwon Children’s Remand Centre”).[8]
[7]Minister for Families and Children, “Establishment of a Remand Centre”, Victorian Government Gazette, No S354, 17 November 2016, 1, 2.
[8]For the purposes of this application, there was no challenge to the lawfulness of this conversion. A proceeding concerning that issue is before another judge of this court. The applicant’s counsel invited the court to proceed on the basis that the conversion was lawful, though the applicant reserved his rights with respect to the outcome of the other proceeding.
On 26 November 2016, the applicant was transferred from Malmsbury to Barwon Children’s Remand Centre.
Evidence was led, based on an account given by a barrister previously acting for the applicant, of the conditions at Barwon Children’s Remand Centre as at 30 November 2016. That evidence included the following:
(1) There were 10 to 15 other children detained in that location.
(2)When initially placed in his cell, the applicant was let out for only 15 minutes a day. On 29 November 2016, this was increased to 1 hour per day.
(3)There were no programs available for the applicant.
(4)Youth workers from Parkville first arrived on 29 November 2016, but it was unclear if they were to remain.
(5)The applicant had not had any visitors.
In addition, a person involved in a legal outreach service for Barwon Children’s Remand Centre, who visited it on 1 December 2016, stated that:
(1)Barwon Children’s Remand Centre was a self-contained unit within the Barwon Prison, but she had to comply with general prison protocol in order to gain access.
(2)Half of the units were closed down, as construction workers were removing porcelain toilets and basins and replacing them with metal units.
(3)Most children were detained in their own cells which had toilets, basins and showers, but at least 1 cell had 2 children in it.
(4)There were a number of Corrections staff members, as well as Youth Justice staff members, who were in the secured staff only area.
(5)A number of Youth Justice workers were on the floor with the children at all times.
(6)Half the children were allowed out of their room at around 9.30 am and were allowed to remain on the floor of the unit for approximately 2 hours. After 2 hours, they were taken back to their rooms so that the other half of the children would be allowed out for 2 hours. This routine was adopted throughout the remainder of that day.
(7)The children were told that, on the following day, they would be allowed out of their cells for most of the day if all went well.
(8)The facilities available included a ping pong table, some couches and a table where a number of children were playing cards with Youth Justice staff.
(9)The children could ask permission to use an outdoor gym, but when a child requested access he was told it could not happen until later.
(10)The applicant had indicated that his mental health had deteriorated significantly since being moved to Barwon Children’s Remand Centre and that he had been kept in his cell and only released for 1 hour each day.
Evidence was led from Anthony Bailey (“Bailey”), the applicant’s youth worker, employed by Youth Justice within the Department of Human Services. Bailey gave evidence that he had been supervising the applicant on an ongoing basis since 2013, except for the 18 month period the applicant spent in South Sudan. Bailey gave evidence of the applicant attending for supervision and program appointments, including some failures to attend. He was generally supportive of the application.
Bailey gave some evidence about substance abuse by the applicant with respect to cannabis. However, there was no suggestion there was a link between this conduct and the more serious offences with which the applicant had been charged, or of which the applicant had been found guilty. Further, Bailey said that, in his assessment, the applicant did not present with any issues in this regard.
Bailey said that, before his most recent arrest, the applicant was engaged in an education program 3 days a week. Bailey described the applicant as being motivated towards this education program. However, the applicant had only participated for 2 weeks before being remanded. Additionally, the program was shutting down on 9 December 2016 for the summer break.
Bailey referred to a vocational program that was available to the applicant, which would continue over the summer except for 2 weeks over the Christmas period. Bailey said the applicant had told him of his willingness to participate in both programs and that getting an education was 1 of his goals.
Bailey said the applicant was very polite and communicative when he attended his supervision appointments. The applicant had expressed his appreciation of Australia, given the crisis he left in South Sudan.
Under cross-examination, Bailey acknowledged that the applicant’s criminal history had been fairly constant since his involvement with the applicant, except for the applicant’s time in South Sudan. Notwithstanding this history, Bailey reported that during his Youth Justice supervised bail period, the applicant appeared to be making an asserted effort to abide by his bail conditions, attend school, and drug and alcohol counselling and had maintained a positive relationship with his family.
The applicant’s mother gave evidence. She expressed her willingness to support the applicant. She said she would look after him, if bail were granted, at her residential home, where she lives with her 3 other children. She said she did not know who the applicant’s friends were, as they did not come to her house.
The applicant’s mother has not visited the applicant since he has been at Barwon Children’s Remand Centre. She said she had spoken to the applicant by telephone, but the applicant had told her not to come to Barwon Prison.
E. Relevant provisions of the Bail Act
By reason that the applicant has been charged with an indictable offence whilst on bail, the applicant is in a show cause situation. Accordingly, the court is required to refuse bail unless the applicant shows why his detention in custody is not justified.[9]
[9]Bail Act 1977 (Vic), s 4(4)(a).
The approach to be taken in such a situation, when considered in conjunction with s 4(2)(d) of the Bail Act 1977 (Vic) and the requirement of the court to be satisfied that there is an “unacceptable risk”,[10] has been the subject of competing authorities.[11] It is unnecessary to discuss such matters here.[12]
[10]Section 4(2)(d)(i) of the Bail Act requires the court to refuse bail if the court is satisfied that there is an unacceptable risk that the accused, if released on bail would:
Fail to surrender himself into custody in answer to his bail;
Commit an offence whilst on bail;
Endanger the safety or welfare of members of the public; or
Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
[11]For discussion on this see Robinson v The Queen (2015) 47 VR 226, 234-236 [25]-[31] (Maxwell P, Redlich and Priest JJA).
[12]On either approach, the same outcome would result.
By reason of the applicant’s age, s 3B of the Bail Act applies. Relevantly, it provides:
(1)In making a determination under this Act in relation to a child, a court must take into account (in addition to any other requirements of this Act)—
…
(b)the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
…
Section 5 of the Bail Act is concerned with conditions of bail. That section concludes with a note concerning the relationship between the rights in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) and provisions in the Bail Act concerning conditions of bail. The note[13] reads as follows:[14]
Sections 12 and 21 of the [Charter] set out a right of freedom of movement and a right to liberty and security of the person.
Sections 23 and 25 of the [Charter] set out the rights of children in the criminal process and the rights of an adult in criminal proceedings.
Section 7(2) of the [Charter] sets out how a human right may be limited after taking into account all relevant factors, including any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
[13]The note forms part of the Bail Act: Interpretation of Legislation Act 1984 (Vic), s 36(3A).
[14]The note was introduced to the Bail Act by the Bail Amendment Act 2010 (Vic), s 8.
As was observed in Woods v Director of Public Prosecutions,[15] by reference to the explanatory memorandum, [16] the purpose of the note to s 5 was to:
ensure the Charter provisions are considered when bail conditions are imposed, particularly those that restrict freedom of movement and provide guidance on what may be considered “no more onerous than is required”. The recommendation was also aimed at ensuring Charter provisions are considered when deciding applications to vary conditions and reviewing conditions.
[15](2014) 238 A Crim R 84, 108 [83] (Bell J).
[16]Explanatory memorandum, Bail Amendment Act 2010 (Vic) 5, [8].
F. Intervention by the Attorney-General
At approximately 10 o’clock on the night before this application was made, the applicant served on the Attorney-General of Victoria and the Victorian Equal Opportunity and Human Rights Commission a notice raising questions of law under the Charter. During the course of the morning of 6 December 2016, the court was informed of the Attorney-General’s intention to intervene.[17] Some time later, the Human Rights Commission indicated it did not wish to take any part in the proceeding.
[17]The Attorney-General may intervene as of right if questions of law are raised under the Charter: the Charter, s 34(1).
The questions of law identified by the applicant for determination were as follows:
1.Is the detention of the applicant in Barwon Prison [ie Barwon Children’s Remand Centre] a contravention of the following rights protected by the Charter:
(a)the right to such protection as is in his best interests and is needed by him by reason of being a child: s 17(2) of the Charter?
(b)the right to be treated with humanity and with respect for the inherent dignity of the human person: s 22(1) of the Charter?
(c)the right to be treated in a way that is appropriate for a person who has not been convicted: s 22(3) of the Charter?
(d)as a child, the right to a procedure that takes account of his age and the desirability of promoting his rehabilitation: s 25(3) of the Charter?
2.Does the court have an obligation under Part 2 of the Charter of upholding the protections guaranteed under ss 17(2), 22(1), 22(3) and 25(3) of the Charter in determining an application for bail?
3.Does the court have an obligation under s 32(1) of the Charter to interpret the provisions of the Bail Act in a manner that is compatible with ss 17(2), 22(1), 22(3) and 25(3) of the Charter?
G. Evidence in opposition
In addition to setting out details of the present charges and the criminal record of the applicant, the informant with respect to the most recent charges, Senior Constable Luke Swain, relied on further matters in support of the contention that the applicant had not shown cause and was an unacceptable risk.
The informant sought to rely upon the events at Parkville, on 13 and 14 November 2016, in seeking to demonstrate that the applicant had not shown cause and to establish he was an unacceptable risk. No direct evidence was led of the applicant’s participation in the misconduct that occurred. However, the court was invited to draw an inference to that effect.
The informant’s affidavit in opposition, and his oral evidence, referred to discussions with other detectives. One of those detectives was informed that the applicant had been identified by Parkville Youth Justice Centre staff as being “a participant in the riot”. The staff were not identified. Closed circuit television footage has not yet been received by the informant and no explanation for its unavailability was provided to the court.
In addition to the above double hearsay evidence from a non-specific source, the informant relied upon further alleged facts, namely that the applicant was outside his cell during the riots and that he was involved in extensive negotiations before his surrender to police on 14 November 2016. There was no evidence suggesting that the applicant was responsible for forcing open his cell door. Further, there was no detail of the negotiations that occurred before the applicant was again taken into custody on 14 November 2016.
In my view, the evidence sought to be relied upon does not provide any basis for establishing that the proper inference to be drawn is that the applicant was an active participant in the misconduct at Parkville on 13 and 14 November 2016. The evidence of the informant in this regard will not be taken into account in determining the outcome of this application.
Evidence was led from the head of operations for Barwon Children’s Remand Centre, Marcel Scott Jacques (“Jacques”). This evidence was primarily concerned with the current conditions at Barwon Children’s Remand Centre and recent conduct of the applicant. Jacques was unable to say exactly when Barwon Children’s Remand Centre opened, given his only recent secondment from Corrections Victoria was after this occurred. Jacques was only appointed as head of operations at Barwon Children’s Remand Centre in the week commencing 28 November 2016.
Jacques gave evidence that the applicant is under a management plan because he was involved in a physical fight with another inmate on Saturday, 3 December 2016. Further, evidence was given of reports of the applicant’s behaviour, some positive but also some “very negative”, towards Youth Justice staff, including threatening to rape 1 female staff member.
Under cross-examination, Jacques was unable to state the particular details of the altercation that occurred on 3 December 2016. He was unable to confirm or deny whether it was another inmate that punched the applicant, a result of which the applicant became unconscious. Jacques confirmed the applicant was required to attend Geelong Hospital for treatment as a result of the altercation.
On the state of the evidence, I cannot be satisfied whether the applicant instigated the altercation or whether he was simply responding to an attack from another inmate.
However, significantly, the evidence concerning the applicant’s negative behaviour towards Youth Justice staff, including the threat of rape, was not the subject of challenge.
With respect to the matters set out in paragraphs 25 and 26 above, Jacques did not seek to directly challenge that account of the state of affairs as at 30 November 2016 and 1 December 2016 pertaining to the applicant. He was unable to give direct evidence on numerous matters directly concerning the applicant.
The evidence Jacques gave as to the state of affairs at Barwon Children’s Remand Centre as at 7 December 2016 included the following:
(1)Jacques oversaw approximately 30 staff, but the staff group was “still developing”.
(2)Barwon Children’s Remand Centre was split into 2 sides, both of which had a range of facilities including cells, staff offices and multi-purpose areas. Both sides had access to a yard which he said was approximately 40 metres by 60 metres. The yard included a “full-size tennis court area”, a “grassed” area and a “covered multi-weight” area.
(3)Barwon Children’s Remand Centre was the first unit you came across when walking into Barwon Prison. Jacques had walked to and from that unit every day since he commenced and had not seen an adult prisoner.
(4)There were a total of 43 cells, but because there was still infrastructure work going on, at the moment the capacity was for 18 young people.
(5)The unit which comprises the Barwon Children’s Remand Centre has high concrete walls. The outer fence has razor wire.
(6) A video conferencing facility had been set up in the previous week.
(7)Family visits had only commenced on Friday, 2 December 2016. From that point in time, families have been able to visit as often as they want in a distinct visiting area. The normal process would be to allow a visit for an hour, but, if no other people were booked in, there was no reason why visiting family members could not stay longer. Further, to support families, a taxi service had been arranged from Lara train station with an account through Youth Justice.
(8)If a young person wanted a single room they would get one. For some young persons it was more suitable that they pair up in a cell with another young person in the interests of their own safety and development.
(9)An education program was being offered 5 hours a day, 5 days a week. Although the classes had been running for some time, a classroom had only been made available for the participants on 6 December 2016. The classes being offered were maths, English, art and music.
(10)There were lock down periods and open periods, but in general there would be approximately 12 Youth Justice workers on call at the relevant times. There were also agencies like chaplaincy, medical providers (who were available and “are there” 24 hours a day) and other “stakeholders” available.
(11)The regime in place at that time meant that young persons would be out of their room for approximately 9.75 hours per day, with “the ambition” that it increase to 11 hours per day by the end of the week.
(12)The youths were provided with 3 meals a day, and throughout the day there was access to bread (to make toast), and fruit in fridges that was available to them.
(13)Access to education and additional programs depended upon the behaviour of the individual. If an individual displayed negative behaviour that needed additional monitoring, a management plan would be developed and individualised for that person, taking into account past behaviour, current behaviour and the severity of the incident or incidents involved.
(14)At the start of the week commencing 5 December 2016, there were 8 clients on management plans by reason of a number of incidents. As at 7 December 2016, there were only 3 that remained on management plans. Jacques said that, once a client showed positive behaviour, they are usually removed from such a plan.
It was common ground that the facilities at Parkville were better and more suitable for youth rehabilitation than Barwon Children’s Remand Centre. Jacques said the use of Barwon Children’s Remand Centre was by reason of “a need for capacity of beds”, but he could not give specific evidence as to why the applicant had been chosen to be located at Barwon Children’s Remand Centre.
As to the applicant being required to remain in his cell for up to 23 hours a day, Jacques stated that people only got locked up for such a period when they displayed negative behaviour whilst out of their rooms. He said it was not standard practice.
H. Relationship between the Bail Act and the Charter
In introducing the Bail Amendment Bill 2015 (Vic), which introduced a number of provisions to the Bail Act including s 3B, a statement was tabled in accordance with s 28 of the Charter.[18] The statement included:
[18]Victoria, Parliamentary Debates, Legislative Assembly, 25 November 2015, 4964-4967. See also Victoria, Parliamentary Debates, Legislative Council, 10 December 2015, 5571-5574.
Decisions about bail
The bill includes a number of provisions that impact on decisions about bail. These provisions engage sections 12, 21 and 25 of the Charter.
Such a statement is consistent with decisions of this court. In Gray v Director of Public Prosecutions,[19] it was held that a breach of a right under the Charter was a relevant consideration in determining an application for bail. In some circumstances, it may be highly relevant.[20]
[19][2008] VSC 4, [10] (Bongiorno J).
[20]Ibid.
However, the rights identified in the Charter do not usurp the provisions of the Bail Act. As was observed in Re Dickson,[21] the terms of the Charter must be taken into account and the court must give full effect to the relevant right or rights, but that must be done within the scheme of the Bail Act.[22]
[21][2008] VSC 516, [22] (Lasry J).
[22]See also Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, 728 [40]-[41] (Maxwell P, Vincent and Kellam JJA); Re Creamer [2009] VSC 460, [31] (Whelan J).
As was succinctly put in Woods v Director of Public Prosecutions:[23]
The provisions of the Bail Act governing the entitlement of accused persons to bail and the conditions on which it may be granted have been designed to take [the] rights [found in the common law and the Charter] into account… Because the rights are not absolute, they do not prevent a refusal of bail to an accused who, for example, represents an unacceptable risk…
[23](2014) 238 A Crim R 84, 88 [3] (Bell J).
As the Charter itself recognises,[24] the human rights it enshrines are subject to such reasonable limits as can be demonstrably justified in a free and democratic society.
[24]Section 7(2).
Questions for determination with respect to the Charter
It is convenient to deal with the questions raised[25] in reverse order.
[25]See par 41 above.
I.1 Section 32(1) of the Charter
Section 32(1) of the Charter provides:
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
The sections in the Charter relied upon are as follows:
Section 17(2)
(2)Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
Section 22(1)
(1)All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
Section 22(3)
(3)An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.
Section 25(3)
(3)A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation.
The general observations made in paragraphs 56 to 60 above largely deal with the issue raised in this question. In short, in construing the Bail Act, the court must start by giving the provisions their “legal” meaning in accordance with the principles of statutory construction.[26] If that meaning is clear, it is not usurped or altered by the provisions of the Charter.[27]
[26]See, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
[27]Momcilovic v The Queen (2011) 245 CLR 1, 36-37 [18], 50 [50]-[51] (French CJ), 92 [170] (Gummow J), 123 [280] (Hayne J), 210 [544], 217 [565]-[566], (Crennan and Kiefel JJ), 250 [684] (Bell J).
The applicant’s counsel focussed in particular on ss 3B and 4 of the Bail Act in submitting s 32(1) of the Charter affected the interpretation of the Bail Act. However, whilst it was submitted that these provisions must be interpreted in accordance with the specific human rights identified above, no alternate construction to the relevant parts of these sections was contended for. In other words, save for an interpretation arising as a matter of ordinary statutory construction of the words used in their context, no other interpretation was advanced.
In short, no ambiguity or competing interpretation was identified in any provision of the Bail Act which might have been said to have been affected in its proper construction by any human right the subject of the Charter.
In these circumstances, there is no basis to depart from the legal meaning of the provisions in question.[28]
[28]See also Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 378 [68], 382-383 [80]-[86] (Redlich, Osborn and Priest JJA); Slaveski v Smith (2012) 34 VR 206, 214 [20], 215 [24] (Warren CJ, Nettle and Redlich JJA).
I.2 Obligation of the court under Part 2 of the Charter
Section 6(2) of the Charter provides:
This Charter applies to—
…
(b)courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3; and
…
Part 2 of the Charter sets out the relevant human rights and includes each of the provisions relied upon on this application.
In light of the position adopted by the parties, it is unnecessary to address this question in order to determine the outcome of this application. Both the parties before the court and the Attorney-General accepted, subject to 1 exception I will come to, the applicability and relevance of the consideration of the applicant’s rights under the Charter in determining whether cause had been shown or whether he presented an unacceptable risk.
The exception was with respect to the right identified in s 25(3) of the Charter. The Attorney-General contended that right was not applicable to an application for bail because that provision “relates to rights in criminal proceedings”. It was suggested that a bail application was a different point in the process. I do not accept this submission.
I refer to paragraph 56 above and the statement made upon the 1st reading of the Bail Amendment Bill 2015 (Vic). That statement suggests that s 25 is relevant to decisions about bail. Further, by reference to the language in s 25(3), the applicant is “charged with a criminal offence” and the reference to “right to a procedure” is not confined to the specific criminal proceeding in question. I can see no good reason for limiting these words to exclude a bail application.[29]
[29]See also Director of Public Prosecutions v SL [2016] VSC 714, [6] (Bell J) concerning the construction of s 6(2)(b) of the Charter. For completeness, in Corns, Criminal Investigation and Procedure in Victoria (2nd ed, 2014), 2, criminal procedure is defined as “all the processes, rules, institutions, and steps involved in the processing of allegations (and charges) of criminal conduct, findings of guilt, and post-trial stages of criminal justice”. As part of the investigation of such “procedure”, an entire chapter is devoted to bail. Similarly, in Arensen and Bagaric Criminal Procedure: Victoria and Commonwealth, (1st ed, 2009), criminal procedure is defined as “the rules and principles by which guilt or innocence is determined” and “the mechanisms by which individuals are brought within the system”. The latter includes “dealing with suspects prior to them being brought to trial”. Arensen and Bafaric’s text also includes a chapter dedicated to bail as part of this definition. Also Evans and Pound, Annotated Guide to the Charter (Lawbook, 2008), 190, states that s 25(3) “applies at all stages in the proceedings from the time of the charge, throughout the trial and the determination of a final appeal”. This includes procedures which “ensure that a restriction on the personal liberty of a child is imposed only after careful consideration”: at 191.
I.3 Alleged breaches of the applicant’s rights under the Charter
It is appropriate to make some general observations about the conditions at Barwon Children’s Remand Centre, both past and present. It is plain that the conditions are far from ideal. So much was effectively conceded by the acknowledgement that conditions at Parkville are far more suited to youth rehabilitation than those at Barwon Children’s Remand Centre. Further, Barwon Children’s Remand Centre was established hastily, arising out of the events at Parkville from 13 and 14 November 2016. The evidence discloses that establishing the appropriate facilities for those placed at this location is a work in progress, which is still underway.
It was submitted on behalf of the informant, towards the end of the first hearing day of the application, that little or no weight could be given to the evidence led on behalf of the applicant as to the conditions at Barwon Children’s Remand Centre. It was contended that, as no one who had been in the facility had given direct evidence, the “shaky grounds” on which the issues had been raised were insufficient to show the facility was not to “the acceptable standard of the government”.
Hearsay evidence may be relied upon on a bail application.[30] Further, at the end of the first day of this hearing, there was no contrary evidence. In the circumstances, I stated that it was a matter for the informant whether or not evidence should be led concerning the 23 hour detention of the applicant, or whether he had been provided with any appropriate programs or facilities. Ultimately, it was decided that Jacques would be called the following morning. Jacques’ evidence is set out above.[31]
[30]Woods v Director of Public Prosecutions (2014) 238 A Crim R 84, 105 [71] (Bell J), citing Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 217 [33] (Coldrey J) and Beljajev v Director of Public Prosecutions (1998) 101 A Crim R 362 (Kellam J).
[31]See pars 47-55 above.
Tellingly, having had the opportunity to call evidence on the following day, no evidence was led to suggest the applicant had had access to any education or other activities consistent with his rehabilitation. Although it was suggested that the extensive detention of the applicant may have been brought about because of the applicant’s own conduct, no direct evidence was led to this effect.
In summary, the evidence discloses the applicant, who is only 16 years old, has been placed in solitary confinement for 23 hours a day in a facility that was built to be an adult prison. At the very least, during the times that this has occurred the applicant had been denied educational programs, appropriate recreational programs or other facilities and amenities consistent with an environment appropriate for the rehabilitation of a child. Further, on the present state of the evidence, the applicant has been so confined in circumstances where there is no direct evidence, or evidence from which an inference might be properly drawn, that he was involved in the riots at Parkville on 13 and 14 November 2016.
In the circumstances, for the purposes of determining this application only, and without making an actual finding, I will proceed on the assumption that since the applicant’s detention at Barwon Children’s Remand Centre:
(1)His right, without discrimination, to such protection as is in his best interests and is needed by him by reason of being a child has been infringed, in contravention of s 17(2) of the Charter.
(2)While deprived of his liberty at Barwon Children’s Remand Centre, he has not been treated at all times with humanity and with respect for the inherent dignity of a human person, in contravention of s 22(1) of the Charter.
(3)Whilst detained at Barwon Children’s Remand Centre he has not at all times been treated in a way that is appropriate for a person who has not been convicted, in contravention of s 22(3) of the Charter.
The assumptions made do not include any reference to s 25(3) of the Charter. The applicant did not make any specific submission that any procedure had been infringed for the purposes of that provision.
J. Determination of the application
Proceeding on the assumption that the applicant’s rights under the Charter identified above have been infringed, it is now necessary to consider whether he has shown cause such that he has demonstrated his detention in custody is not justified, including by reason that it has been established he presents an unacceptable risk of failing to surrender himself into custody in answer to his bail, of committing an offence whilst on bail, or of endangering the safety or welfare of members of the public.
With respect to the risk the applicant poses in answering his bail, the informant relied upon the applicant’s previous failure to answer bail earlier this year while he was located in South Sudan. It was contended there was a disregard for compliance with instructions and orders by him failing to return from overseas to answer bail. Reference was also made to prior contraventions of a conduct condition of bail and breaching bail conditions by failing to report 4 times within 11 days as required under a Youth Justice supervision order.
In my view, the matters relied upon do not suggest that the applicant represents an unacceptable risk in this regard. His failure to return from South Sudan appears to have been substantially, if not entirely, out of his control. Further, failing to meet some of his bail conditions in this regard previously does not suggest that he would fail to surrender himself into custody to answer bail.
With respect to the risk of the applicant committing an offence whilst on bail, the informant referred to the fact that the applicant has been supported by Youth Justice since 2013, but has not ceased offending. Further, reliance was placed upon the more recent charges as demonstrating the applicant’s willingness to commit offences whilst on bail.
As to endangering the safety or welfare of members of the public, it was submitted that the applicant has demonstrated a propensity for placing the community in danger by being alleged to have committed an armed robbery and being a passenger on occasions in vehicles involved in dangerous driving without regard to the safety of others. Reliance was also placed upon the applicant’s prior criminal history.
There is undoubted substance to the concerns expressed on behalf of the informant. From late 2013 until his departure to South Sudan in late 2014, the applicant was found guilty of numerous serious offences, including 11 robberies and 5 attempted robberies, over a period of approximately 14 months. Further, since his return from South Sudan, the applicant has been the subject of serious charges. Although he is presumed to be innocent of those charges, the nature and seriousness of the charges is directly relevant to the determination of the outcome of this application.
The applicant did not dispute the seriousness of some of the offences of which he has been found guilty. However, in relation to the most recent charges, in particular the most serious charge of armed robbery, it was submitted the case against the applicant was weak. In particular, it was contended, and I accept, that the identification evidence of the 3 witnesses in question has some real difficulties. However, it was conceded on behalf of the applicant that there was “a reasonably strong circumstantial case” in respect of the charge of theft of a motor vehicle. This is the same motor vehicle that was the subject of the armed robbery. The basis of this concession was that 2 fingerprints, allegedly being those of the applicant, were located on the rear view mirror of the stolen vehicle.
Further, at approximately 5.20 am on 8 October 2016, the applicant was detected, with 3 others, in a stolen motor vehicle. This was at a time when he was the subject of a curfew pursuant to bail granted on 5 August 2016.[32] When approached by the police, that vehicle refused to stop, sped off and reached approximately 160 kilometres per hour for short distances. The applicant was located in the front passenger seat of that car. He denied any knowledge that the car was stolen. Be that as it may, the timing of these events shows that the applicant was in serious breach of his conditions of bail.
[32]See par 13 above.
Accepting on the evidence before the court that the identification of the applicant with respect to the charge of armed robbery is weak and that the applicant disputes the charges, the evidence does demonstrate a direct connection between the applicant and the vehicle the subject of the armed robbery and that the applicant has had little regard for bail conditions previously put in place. When this is considered together with his criminal history, the applicant presents as an unacceptable risk and has failed to show cause as to why bail should be granted at present.
In reaching this conclusion, I have considered the particular matters referred to in s 3B of the Bail Act.
To elaborate, I accept that the applicant’s placement at Barwon Children’s Remand Centre creates difficulties with respect to strengthening and preserving his relationship with his family given the distance between that facility and his mother’s residential address.[33] That said, it appears the reason the applicant’s mother has not visited him to date is as a result of the request of the applicant. The applicant’s mother has access to a vehicle and can drive. There seems to be no real obstacle to his mother, or others, visiting the applicant.[34]
[33]Bail Act, s 3B(1)(b).
[34]See par 34 above.
In any event, there is naturally interruption and disturbance in the applicant’s living arrangements by reason of his incarceration.[35] I have taken this factor into account.
[35]Bail Act, s 3B(1)(c).
With respect to education, training or employment of the applicant,[36] the evidence suggests these matters have recently been attended to at Barwon Children’s Remand Centre. Given the availability of education 5 days a week, if the applicant is a willing participant it is possible he will receive better education in the short term at Barwon Children’s Remand Centre than if released on bail.[37]
[36]Bail Act, s 3B(1)(d).
[37]See pars 29-30 above.
The stigma of being remanded in custody[38] at Barwon Children’s Remand Centre must be significantly greater than that at Parkville. This must follow not only from a comparison between the physical surrounds of the 2 facilities, but also from the location of Barwon Children’s Remand Centre in a high security adult prison. This matter has been taken into account.
[38]Bail Act, s 3B(1)(e).
Further, I accept the applicant’s contention that it is possible that the applicant’s continued incarceration at Barwon Children’s Remand Centre may negatively impact upon his likely sentence to the extent that the applicant may have less opportunity to engage productively through the remand process by engaging in education and programs.[39] I have taken this factor into account.
[39]Bail Act, s 3B(1)(f).
Overall, in reaching the conclusion not to grant bail at this time, I have given considerable weight to the conditions in which the applicant presently finds himself. However, given the level of unacceptability of the risk the applicant presents, those conditions and the presumed infringements of the applicant’s rights under the Charter do not make that risk acceptable.
It was conceded by the applicant that he had a relevant criminal history, but it was contended that the risk he presents could be properly managed by appropriate bail conditions. Particular reliance was placed upon his suitability for the intensive bail support program managed by Youth Justice. For the reasons set out above, any bail conditions, including a strict curfew, are not likely to provide the appropriate protection to the community. Further, as already noted, the applicant has had the support of Youth Justice since 2013. Without in any way detracting from the efforts made in that regard, it would appear that such support has not had the desired effect to the extent necessary to make the applicant anything other than an unacceptable risk.
K. Further conduct of the matter
In exceptional cases, it may be appropriate for the court to seek to satisfy itself of acceptable conditions of custody on an ongoing basis.[40]
[40]See, for example, R v Benbrika (No 20) (2008) 18 VR 410, 430-431 [100]-[102] (Bongiorno J).
Some of the evidence in this application is deeply concerning. I have drawn the inference that some of the conditions to which the applicant has been subjected were, or are, temporary in nature given the urgency with which the Barwon Children’s Remand Centre was established.
Rather than disposing of this application by refusing bail, I propose to adjourn this application for approximately 1 week and, to the extent necessary, remand the applicant in custody until that time.
In order to consider this matter further, I will direct that the informant cause an affidavit or affidavits to be filed and served by 10.00 am on 19 December 2016 deposing to:
(1)The conditions of the Barwon Children’s Remand Centre as at 16 December 2016.
(2)The particular circumstances pertaining to the applicant in the week ending 16 December 2016.
Further, I will direct that if the applicant wishes to file any further evidence on the application, he may do so by 10.00 am on 20 December 2016.
Pursuant to s 34 of the Corrections Act 1986 (Vic), a judge of this court has the right to visit any prison at any time. Although the Barwon Children’s Remand Centre can no longer be considered a prison for the purposes of this section,[41] I propose to attend Barwon Children’s Remand Centre next Monday morning to conduct a view of the premises and conditions. It is expected the parties’ representatives will be in attendance when this takes place. I will then further consider the bail application in light of the additional evidence, including having had the benefit of a view, and any further submissions the parties may wish to make in light of the additional evidence.
[41]In addition to the creation of the Barwon Children’s Remand Centre, on 17 November 2016, the Government Gazette published the revocation of the Grevillea Unit as a prison. See also fn 8 above.
The application will be adjourned to 10.00 am on 21 December 2016.
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