Application for Bail By HL (No 2)

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, 19, 21 DECEMBER 2016, 6 JANUARY 2017
DATE OF RULING:	6 JANUARY 2017
CASE MAY BE CITED AS:	APPLICATION FOR BAIL BY HL (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 1

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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), 25(3), 32(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Austin Mr C Gauld (6 January 2017)	Victoria Police
For the Accused	Mr J Williams Mr P Smallwood (6 January 2017)	Victoria Legal Aid
For the Victorian Attorney-General (intervening)	Mr L Brown Mr A Dinelli (6 January 2017)	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

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

B.. Observations made on the view on 19 December 2016......................................................... 4

B.1... Appearance (external)......................................................................................................... 4
B.2... Appearance (internal)......................................................................................................... 5
B.3... General observations.......................................................................................................... 6
B.4... Education facilities and related matters.......................................................................... 7
B.5... Medical facilities.................................................................................................................. 9
B.6... Outdoor facilities................................................................................................................. 9
B.7... Cells..................................................................................................................................... 11
B.8... Video-conferencing........................................................................................................... 12
B.9... Visitor facilities.................................................................................................................. 12

C.. Further evidence in opposition............................................................................................... 13

D.. Further evidence on behalf of the applicant......................................................................... 24

E... Observations on conditions under which the applicant is being held............................ 26

F... Position adopted with respect to the Charter........................................................................ 28

F.1... Previous position.............................................................................................................. 28
F.2... Applicant’s further submissions..................................................................................... 28
F.3... Attorney-General’s further submissions........................................................................ 29
F.3.1Section 17(2)......................................................................................................................... 29
F.3.2Section 22(1)......................................................................................................................... 32
F.3.3Section 22(3)......................................................................................................................... 33
F.3.4Section 25(3)......................................................................................................................... 34
F.4... Assumptions made........................................................................................................... 34

G.. Recent developments with respect to present charges........................................................ 35

H.. Determination of the application............................................................................................ 36

HIS HONOUR:

A. Introduction

On 13 December 2016, an interim ruling was made (“the Interim Ruling”)[1] with respect to an application for bail by HL.[2]
[1]Application for bail by HL [2016] VSC 750.
[2]A pseudonym, given the applicant’s age.

For the reasons stated in the Interim Ruling, the applicant was not granted bail as he presented an unacceptable risk in a number of respects and had failed to show cause as to why bail should be granted at that time.[3] However, the evidence before the court as to the conditions under which the applicant was being held was not entirely satisfactory. Accordingly, on the court’s own motion, the application was adjourned so that I could attend the facility at which the applicant was being held, namely the recently created children’s remand centre located at the Grevillea Unit at Barwon Prison (“Barwon Children’s Remand Centre”).
[3]Interim Ruling [80]-[96].

In accordance with the Interim Ruling, a view was held of Barwon Children’s Remand Centre at 10.00 am on 19 December 2016. It was attended by representatives for the applicant, the informant and the Attorney-General. It was accepted by the parties that the court was entitled to draw any reasonable inference from what was seen, heard or otherwise noticed during the view.[4]
[4]See Evidence Act 2008 (Vic), s 54.

Pursuant to orders made on 13 December 2016, both the applicant and the informant led further evidence for the further hearing on 21 December 2016.

At 10.00 am on 21 December 2016, the hearing resumed. However, because of the unavailability of a witness for cross-examination, the hearing was adjourned until 2.15 pm that day.

On the morning of 21 December 2016, judgment in Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children[5] was delivered. Amongst other things, Garde J held that the Orders in Council by which the Barwon Children’s Remand Centre was established[6] were invalid and of no effect and that, as a consequence, the decisions to transfer the residents to that location (including the applicant in this proceeding) were also invalid and of no effect.[7] Garde J made orders requiring the residents at Barwon Children’s Remand Centre to be transferred to other remand centres, but those orders were stayed until 28 December 2016 in anticipation of an urgent application to the Court of Appeal for leave to appeal.
[5][2016] VSC 796 (Garde J).
[6]See Interim Ruling, [23].
[7]At [295] and [321].

The reasons of Garde J included a finding that there had been a contravention of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”).[8] In particular, his Honour found that:[9]

[T]he recommendation by the Minister for Families and Children to make the Orders in Council, and the Orders in Council themselves, were made contrary to s 38(1) of the Charter in that proper consideration was not given to the human rights of the plaintiffs under ss 10(b), 17(2) and 22(1) of the Charter.

On 21 December 2016, the informant made no submissions to the effect that the Charter had not been contravened by reason of the evidence before the court on this application. The court was told this position was adopted in light of the conclusions reached by Garde J with respect to the Charter.

[8]At [141]-[230] and [321].

[9]At [321(1)].

On 21 December 2016, I reserved my decision. The applicant remained in custody. Shortly after, the application for leave to appeal from Garde J’s judgment was listed for hearing on 28 December 2016.

On 28 December 2016, the application for leave to appeal and the appeal were, in part, heard and determined. The orders and declarations made on that day included the following:

3.The declaration [of the trial judge] that the Order in Council dated 17 November 2016 under s 478(a) of the Children, Youth and Families Act 2005 (Vic) establishing a specified area at Barwon Prison, 1140 Bacchus Marsh Road, Anakie as a remand centre for emergency accommodation and published in Victorian Government Gazette S354 is invalid and of no effect (Order 1b) is amended by deleting the expressions ‘and of no effect’, and ‘and acted for an improper or extraneous purpose’ but is otherwise affirmed.
4.The declaration [of the trial judge] that the Order in Council dated 17 November 2016 under s 478(c) of the Children, Youth and Families Act 2005 (Vic) establishing a specified area at Barwon Prison, 1140 Bacchus Marsh Road, Anakie as a youth justice centre for emergency accommodation and published in Victorian Government Gazette S354 is invalid and of no effect (Order 2b) is amended by deleting the expressions ‘and of no effect’, and ‘and acted for an improper or extraneous purpose’ but is otherwise affirmed.

…
6.In lieu of [certain orders], it is ordered that subject to further order of the Court, on or before 4.30 pm on Friday 30 December 2016, any of the plaintiffs required to be detained under the Children, Youth and Families Act 2005 (Vic) be detained in either a remand centre or a youth justice centre (as the case may be) in Victoria lawfully established under s 478 of the Children, Youth and Families Act 2005 (Vic).

On the afternoon of the following day, the Court of Appeal published its reasons for decision.[10] Those reasons indicated that the Court of Appeal had, with the agreement of the parties, adjourned the hearing of that part of the application for leave to appeal concerned with Garde J’s findings of unlawfulness by reason of contravention of the Charter.[11] The Court of Appeal stated that there was no apparent urgency with respect to those matters and that they would be dealt with on a date fixed after 1 February 2017.[12]
[10]Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343 (Warren CJ, Maxwell P and Weinberg JA).
[11]At [8].
[12]Ibid. See also at [45]-[46].

Also on 29 December 2016, the Governor in Council, on the advice of the Minister for Families and Children, revoked the order made and published on 17 November 2016 establishing Barwon Children’s Remand Centre as a remand centre.[13] Immediately upon this order being made and published, a further Order in Council was made establishing Barwon Children’s Remand Centre again as a remand centre under s 478(a) of the Children, Youth and Families Act 2005 (Vic).[14]
[13]Minister for Families and Children, “Revocation of Order Establishing a Remand Centre”, Victorian Government Gazette, No S403, 29 December 2016, 1. See also Interim Ruling, [23].
[14]Minister for Families and Children, “Establishment of a remand centre in Victoria”, Victorian Government Gazette, No S403, 29 December 2016, 2. At the same time, there was a revocation and re-establishment of Barwon Children’s Remand Centre as a youth justice centre: Minister for Families and Children, “Revocation of order establishing a youth justice centre” and “Establishment of a youth justice centre”, Victorian Government Gazette, No S403, 29 December 2016, 1 and 3 respectively. The court was informed that these Orders in Council were made between approximately 4.00 pm and 4.15 pm on 29 December 2016.

Finally, on 29 December 2016, the Minister for Families and Children publicly stated that, in revoking the previous Orders in Council and reinstating Barwon Children’s Remand Centre as a remand centre and a youth justice centre under the Children, Youth and Families Act, the issues raised by the courts had been considered and addressed. To date, there has been no legal challenge to the Orders in Council made on 29 December 2016.[15]
[15]For the purposes of this application only, and without prejudice to any rights he may have, the applicant does not challenge the lawfulness of the Orders in Council made on 29 December 2016.

In light of the continually changing circumstances concerning the Barwon Children’s Remand Centre, on 30 December 2016, the parties were informed that the application was relisted for further hearing.[16]
[16]Originally the matter was listed for 4 January 2016 (with a direction for the informant to file and serve further evidence by 10 am on 3 January 2016), but, because of the unavailability of counsel, the matter was relisted for 6 January 2016.

For the sake of brevity, with some minor exceptions, only the further evidence relied upon today is expressly referred to in this ruling. However, the evidence the subject of the Interim Ruling[17] was also before the court and has been considered in giving this ruling.
[17]See at [2]-[34], [42]-[55] and [73]-[77].

B. Observations made on the view on 19 December 2016

Set out below are observations made on the view.[18]
[18]See par 3 above.

B.1 Appearance (external)

The unit comprising the Barwon Children’s Remand Centre was located within the walls of Barwon Prison, next to the Melaleuca Unit.[19]
[19]See par 76(1) below.

There was a large hole in the ground near the entrance the attendees were taken through, which was described as sewerage overflow.

B.2 Appearance (internal)

The unit was divided into 2 wings, which were connected by a secure door. At the time of the view, 1 wing was occupied (“Side A”) and 1 unoccupied (“Side B”). Both wings appeared to be similarly constructed. A control room sat at the end of the unit.

The shared wall between the 2 wings had a door next to the control room.

From the control room, staff could observe the activities of the unit, including entrance into the unit, via closed circuit television. The room was accessable via a door in Side B. Marcel Scott Jacques (“Jacques”), an employee of the Department of Health and Human Services and head of operations at Youth Justice Custodial Services, advised that closed circuit television footage only went to the Department of Health and Human Services staff, and not to the prison authorities generally. A sign reading “prisoner free zone” was affixed to the door facing out to the unit. On the other side of the door facing into the control room was a sign which read “no exit, construction area”. Notwithstanding this sign, staff and contractors wearing high-visibility shirts were observed entering and exiting through this door into Side B.

At the opposite end to the control room in Side B was a locked door leading, via a caged area, directly into the outdoor space.

In Side A, at the opposite end to the control room, was a common room (see “Education facilities and related matters” in paragraphs 35 to 42 below) and, to its left, a locked door leading, via a caged area, to the prison grounds. A path led to another locked door, behind which was the outdoor space consisting principally of a yard. This had been, until very recently, the route taken by residents when escorted to the outdoor space: see “Outdoor facilities” in paragraphs 45 to 56 below.

The cells in both sides of the unit (also described as “rooms”) were on 2 levels structured around a central atrium space (described as a “multi-function space”). In Side A, there were 21 cells and in Side B, there were 22 cells. The cells were of various configurations: see “Cells” in paragraphs 57 to 65 below.

The multi-function space had an area of carpet in the centre surrounded by hard floor. In Side B, the multi-function space had 1 washing machine, 2 dryers, 1 medium-sized fridge, 2 portable mini soccer goal nets and various other items.

In Side A, the multi-function space had a table and chairs (which could seat approximately 6 to 8 people), a table tennis table, 4 sofas arranged together and a small kitchen area with a trolley full of bags of white sliced bread, a microwave and a toaster.

In Side B, there were 2 additional rooms off the multi-function space (see “Video-conferencing” in paragraph 66 below) and on the wall adjacent to Side A there was a caged phone booth with 3 plastic chairs stacked inside. The sign next to the phone gave details of how to contact the ombudsman either by post or phone. Jacques advised that the ombudsman had checked that the direct dial function was working.

Throughout Side B there were signs giving details of the independent visitor program from the Commission of Children and Young People. The date given on the signs for the next scheduled visit was Wednesday, 30 November 2016, between 10.00 am and 3.00 pm.

B.3 General observations

The view commenced at 10.00 am and concluded at 10.44 am, when all the attendees exited the unit.

Jacques advised that there were currently 15 children on the unit. He said that, at the time of the visit, no children were on Management Plans[20] following a “good weekend”.
[20]See par 79 below.

As the visit began, 4 residents were in the yard. The other residents were either in the common area of Side A or, according to Jacques, had chosen to remain in their rooms sleeping. No residents were in the educational room. The residents in the common area of Side A were sitting at the common table and on the sofas, and 1 was playing table tennis with a staff member.

There appeared to be 2 main groups of staff. Some wore blue tops. The others wore green tops. There were a number of staff and contractors present in Side B. The contractors appeared to be carrying out various tasks.

While in Side B, 1 resident was observed accessing the fridge to get an icypole. The resident was told off by a staff member, but allowed to keep the icypole. The resident then went to the yard with another resident. When they both returned, both of them opened the fridge again and were told to put the icypoles back by staff.

The applicant’s counsel, who had visited the unit on Friday 16 December 2016,[21] commented that, on that occasion, the noise level in the unit had made it very difficult to maintain a conversation. Jacques agreed that there was “almost no quiet area” and that a benefit of the imminent extension of the unit into Side B would be the splitting of functions requiring quiet (ie video-conferencing and legal consultations) from those generating noise (ie music education program activities).
[21]See par 106 below.

Construction noises could be clearly heard while in Side A.

B.4 Education facilities and related matters

Jacques advised that there was presently no education program running, as it was the week before Christmas and the program had been more “relaxed” and “fun”.

The education facilities consisted primarily of a room at the opposite end of Side A to the control room. This room had a door and floor-to-ceiling glass in place of the wall looking out over the multi-function space in the centre of the wing. There were roller blinds with what appeared to be black semi-screening fabric above the glass wall panels (but not the door). The external windows looked out over a path with a barbed wire fence in the near distance, and a concrete wall topped with razor wire beyond that.

In this room there was a table with 6 plastic chairs and a whiteboard on the left hand wall reading “Parkville College” (presumably a reference to Parkville Youth Justice Centre (“Parkville”)) with names written underneath. There were various subjects written underneath each name, including numeracy, physical education, literacy, music, legal studies, and philosophy.

There was a table by the opposite wall with a stack of folders underneath, a very small number of books (including at least 1 dictionary), a “world sport” magazine and what appeared to be colouring books. There were 3 more plastic chairs in front of this table.

Jacques advised that various education program activities were also held on the sofas in the multi-function space (specifically music) – “a less formal setting”. The music activities had use of 2 guitars and 2 ukuleles.

Jacques said this room had also been used (and was to be used until the following week), as needed, for video-conferencing and legal consultations. When this occurred, education program activities had either ceased or been conducted in the multi-function space.

Jacques advised that, if a “client” wanted a particular book it might be obtainable from the Parkville library and that there had been regular trips back and forth to Parkville.

Jacques advised that cultural support was available to the residents, for example priests visited during the week. He said there were no worship services held at Barwon Children’s Remand Centre.

B.5 Medical facilities

When medical attention was required, a nurse used a room in Side A or attended residents in their cells (for those on Management Plans[22] who could not be attended to in the medical room).
[22]See par 79 below.

Once Side B was in use, a room would be available as a medical suite. This medical suite consisted of a room with a medical trolley (in place of a bed) and an adjacent room.

B.6 Outdoor facilities

Jacques advised that the procedure for escorting residents to the outdoor space was conducted on an individual basis (ie a different procedure might be used for different residents).

Jacques advised that until 17 December 2016, residents were only able to access the yard by walking outside from Side A, through the caged area and on a path that forms part of the Barwon Prison facility.[23] This meant that residents had to be escorted into the locked caged area, handcuffed and then escorted by staff to the yard (approximately a 30 metre walk). The attendees of the view were escorted to the yard via this route.
[23]See par 22 above.

From the previous Saturday, residents could now access the yard through a door in Side B. Although not required to be handcuffed, residents still had to wait in a caged area while the door behind them was locked, and then the door to the yard was unlocked. The same procedure had to be followed to return to Side B.

The outdoor space was surrounded by a 4.2 metre high colourbond steel fence, topped with razor wire. Jacques advised that previously only 2 residents were allowed in the yard at any given time because the razor wire was not high enough. This had been replaced with larger razor wire.

Jacques advised that the colourbond had been put up the previous week to “prevent the visual aspect” (ie as screening). Jacques also advised that its purpose was to separate Barwon Children’s Remand Centre from other parts of the prison, so that not all prison staff were required to obtain a “working with children check”.

The outdoor space consisted of a uneven tarmacked area, roughly laid out as a basketball court, surrounded by a grassed border interspersed with a few plants. The only shaded areas were next to the Side B entrance and over the weights area.

There was 1 basketball ring. Jacques advised that another basketball ring (for the other end of the court) was on order. He also said the soccer goals could be brought out for soccer games.

The grassed area to the left on entry had a number of pieces of gym equipment which were “hinged” (utilising the user’s own body weight). To the right were a number of pieces of gym equipment, adjacent to the wall shared with the Melaleuca Unit.

On arrival in the yard, a number of residents sat on the gym equipment accompanied by staff. One resident briefly kicked a football. A number of other footballs were observed in the razor wire above the gym equipment. Jacques noted that these balls could not be retrieved.

Jacques advised that up to 6 out of the 15 residents could be in the outdoor space at 1 time (and that this number would soon go up to 9). He said once this maximum had been reached and another resident wanted to go out, 1 of the residents already outside was required to come in. He said that residents were able to stay in the yard as long as they wanted, unless other residents wanted a turn to go outside.

He also advised that there were organised activities in this space, in addition to “general staff interaction”, including a soccer group and a “work out” group. Residents were also given the opportunity to engage in structured activity, for 1.5 hours each evening.

The sound of a number of dogs barking could be heard from the outdoor space. An alarm could also be heard at 10.39 am and at 10.40 am, as the attendees moved to re-enter Side B. At that time, a staff member advised that there was an incident on Side A.

B.7 Cells

The attendees were shown 3 main types of cells (all appeared to be of similar dimensions of approximately 3 metres by 2 metres): single bedrooms, double or bunk bedrooms and “buddy rooms” in which 2 single rooms were conjoined without a door between them.

Jacques advised that the capacity of the unit was based on the number of cells, not the number of beds. This meant that, if a resident wanted to share with another resident that could be accommodated, but if they “get fed up of each other” or need to be separated (depending on “risk assessments”), there would be another cell to which they could be moved. Jacques said there was “no forced sharing”.

Each cell contained a bed, a shower, a sink and a toilet.[24] Some cells had a mirror. The single bedrooms had a storage unit which, if the cell had 2 beds, doubled as a ladder.
[24]Other than “dry cells”: see par 65 below.

Each cell had an intercom system link to the control room, electricity and television sockets, and some had reading lights. Residents were encouraged to use the intercom for emergencies only.

Jacques advised that there were no restrictions on the use of television, unless the resident destroyed his television.

The door to each cell appeared to be remotely lockable and had a small glass viewing panel that could be covered by a cloth.

Jacques advised that the “buddy rooms” were used if a resident was considered vulnerable and had another resident with whom they “[got] on”.

Jacques also described “management cells” or isolation rooms, which had no shelving or tables. Once Side B became operable, there would be 1 of these rooms in each wing. These were to be used if a resident attempted self-harm (to give “more workable space”). If the staff considered a resident was safe to have a television, that could be placed in the cell on a cardboard table.

Finally, Jacques described “dry cells”, which were without a toilet or sink, in which evidence could be preserved (for example, if a resident had been in fight and had blood on his body or clothes).

B.8 Video-conferencing

In Side B, a room was being renovated specifically for the purposes of video-conferencing. This room had previously been the kitchenette. It had sound-proofing on the walls and had been freshly painted. This room was empty at the time of the visit.

B.9 Visitor facilities

The visitor facilities were accessed from the unit via a gate at the far end of the outdoor space. There was a short path and then direct access into the visitor room.

Visitors would enter by a gate immediately to the right on entry from the main gatehouse entrance to the prison. They would walk along a short path into the visitor room.

The visitor room contained 6 low (toddler height) white tables with 4 built-in stools attached to them. At the far end of the room was a collection of children’s toys. At the other end of the room was a vending machine with drinks and food in it.

The floor was covered with dust, some dead insects and did not appear to have been cleaned recently. To the left of the room, adjacent to the path visitors would take to enter the visitors’ room (separated by a fence), was a small outdoor grassed area.

Jacques advised that the unit had received “not a lot of visitors” since being redesignated as a children’s remand centre. He further advised that family could visit the unit between 10.00 am and 2.00 pm, 7 days a week and that while family visits in Parkville or Malmsbury Youth Justice Precinct (“Malmsbury”) were limited to 1 hour slots, theoretically families could visit for 4 hours unless the visitor room did not have capacity and another resident needed the room for a visit.

Jacques advised that usually 1 staff member remained in the visitor room during visits, unless more staff were needed.

C. Further evidence in opposition

For the purposes of the hearing on 21 December 2016, Jacques gave further evidence by affidavit.

According to his evidence, by reason of the riots at Parkville, both Parkville and Malmsbury became “overcrowded and unsafe for clients and staff”. Further, in the immediate aftermath of the riots, residents at Parkville were housed in “isolation rooms” and “holding cells” not designed to accommodate children in the long term. These rooms did not have fixed bedding, a toilet, a shower or a television. It was because of these circumstances that Barwon Children’s Remand Centre was established.

The additional evidence from Jacques also concerned the conditions at Barwon Children’s Remand Centre as at 16 December 2016 generally, and also specifically with respect to the applicant.

With respect to the general conditions as at 16 December 2016, Jacques’ evidence included:

(1)Barwon Children’s Remand Centre is located within Barwon Prison and shares walls and a roof with the Melaleuca Unit, which is a high security unit used to accommodate high risk prisoners. This unit is physically separated by a sterile area,[25] and there are separate doors leading to that unit and the Barwon Children’s Remand Centre.
(2)When the area which is now Barwon Children’s Remand Centre formed part of the prison, it was used as a “protection unit” for prisoners who were at risk of violence from other general population prisoners, but was not used as a maximum security protection unit.
(3)Barwon Children’s Remand Centre is a 2 storey building divided into 2 sides known as Side A and Side B. Each side has 2 floors of rooms. There are 43 rooms in total, including single and shared rooms.
(4)Side B has recently been renovated. The Barwon Children’s Remand Centre now has a medical examination room (consisting of 2 rooms), 2 wet isolation rooms, 1 dry isolation room and a storage room.
(5)There are presently 15 residents detained at Barwon Children’s Remand Centre.
(6)In addition to the 43 rooms referred to above, there is a “dedicated classroom”, a multi-purpose area and an outdoor yard.
(7)Now that Side B is available for use, direct access can be gained to the outdoor yard. Prior to this time, access could only be gained from Side A, via a gazetted area of the Barwon Prison. Accordingly, residents were previously handcuffed in order to be escorted from Side A to the yard.

[25]A sterile area is a prisoner-free area within the prison.

Jacques also gave evidence of the “food, comfort and sanitary conditions”. That evidence included:

(1)Each resident receives 3 meals a day (the details of which were set out in Jacques’ affidavit).
(2)During the day, residents also have access to bread, spreads and fruit.
(3)There is a canteen from which residents can make weekly orders, and residents receive money to purchase items from the canteen pursuant to “a scheme designed to reward positive behaviour”.
(4)Each resident receives a standard bed pack, which consists of a doona, 2 pillows, a mattress and sheets.
(5)There is airconditioning throughout Barwon Children’s Remand Centre.
(6)The Department of Health and Human Services’ staff administer medications, both prescribed and non-prescribed. At least 1 medical staff member employed by Youth Health and Rehabilitation Service is present from 8 am to 10 pm each day to distribute any medication required. On Mondays, Tuesdays and Wednesdays medical staff are present 24 hours a day. From Thursdays to Sundays the medical staff are on call from 10 pm to 8 am, but are not physically present.[26]

[26]To this extent, this evidence is inconsistent with evidence previously given by Jacques on 7 December 2016 that “medical [staff] are there 24/7”.

Jacques gave evidence that the rooms at Barwon Children’s Remand Centre were usually unlocked between approximately 8.30 am and 8.00 pm. At 8.00 pm they were locked until the following morning. The rooms were also locked between approximately 4.00 pm and 4.30 pm each day, to enable staff to attend the daily staff meeting. He gave evidence based on information from the head of operations at Parkville and Malmsbury that the same regime is adopted at those locations.

Jacques explained the plans (“Management Plans”) that are put in place from time to time with respect to residents at Barwon Children’s Remand Centre, known as either a safety separation management plan (“Safety Plan”) or an individual behaviour management plan (“Individual Plan”). Both Safety Plans and Individual Plans respond to behaviour that requires increased monitoring. They may be put in place to protect a resident, to protect other residents, or to manage disruptive behaviour and promote constructive behaviour. According to Jacques, a Management Plan is not a form of discipline or punishment, but rather is a tool to assist a client to learn appropriate behaviours within the Barwon Children’s Remand Centre. Jacques said there is a focus on rewarding positive behaviours. Whilst Jacques acknowledged during cross-examination that Management Plans clearly had a deterrent factor, he said the “whole idea behind them” was to provide a learning plan to improve behaviour with the goal of getting residents off Management Plans, as well as ensuring the safety and security of other residents and staff.

As to the different uses of Management Plans, a Safety Plan is used when a resident is not engaging with staff. Once it is perceived the resident is so engaging, he is then moved to an Individual Plan.

Also based on information from the head of operations at Parkville and Malmsbury, Jacques gave evidence that these plans were a standard response in all youth justice and remand centres in Victoria.

Jacques stated that residents placed on Safety Plans or Individual Plans may not be allowed out of their rooms as much as other residents, depending on the circumstances and the level of interaction with staff and other residents. Jacques stated that Safety Plans involved the residents spending more time in their rooms (up to 23 hours a day) because of the closer scrutiny required. In contrast, Individual Plans may involve no restriction on a resident’s time out of his room.

With respect to education, the dedicated classroom became available on 6 December 2016.[27]
[27]An induction session was held on 1 December 2016 to determine the current levels of education attainment by each resident.

Jacques deposed that 5 hours of classes are provided each weekday, commencing at 9.30 am. They are provided in both the classroom and the multi-purpose area located in Side A. Jacques stated he was informed that a “range of equipment” would be provided soon, including iPads, laptops, a keyboard and music recording equipment.

Jacques stated that, as at 16 December 2016, all residents without particular restrictions under either a Safety Plan or an Individual Plan were attending a full 5 hours of classes. He had observed himself that the teachers, from Parkville, were delivering classes in English, mathematics, art, music and physical education.

In addition, at the conclusion of daily classes, activity sessions, including music classes, soccer games and exercise classes, are delivered by outside organisations.

With respect to religious instruction, an imam and a priest attend 1 day a week.

In addition to the general circumstances, Jacques gave evidence concerning the conduct and treatment of the applicant from 10 December 2016 to 16 December 2016. That account was not based on Jacques’ own knowledge, but on notes made by other staff members. That evidence included:

Saturday 10 December 2016
1.This was a normal day; the applicant was out of his room and participating in normal activities on the unit as set out above.
Sunday 11 December 2016
2.The day commenced as above. At approximately 11.20 am, having been out of his room and participating in normal activities, the applicant was making Christmas cards in the multipurpose room when he became involved in an incident. Another client had assaulted a member of staff. During the restraint of the perpetrator, the applicant attempted to get to the scene. Staff intervened to prevent this from occurring. The applicant was requested to, but refused to, return to his room. After one hour of negotiation, which involved Youth Workers talking to him, attempting to reason with him and explain the actions they were requesting, the applicant returned to his room. At this point he was placed on [a Safety Plan] and remained in his room for the remainder of the day with frequent observations and interactions with staff.
Monday 12 December 2016
3.The applicant remained on the [Safety Plan] due to lack of reengagement with staff and denial of wrongdoing the previous day. He was permitted to be out of his room for 1 hour without restriction. He remained in his room for the rest day with frequent observations and interactions with staff.
Tuesday 13 December 2016
4.The applicant commenced the day on the [Safety Plan]. [An account was then given by Jacques of alleged events which the applicant disputes. In circumstances where Jacques was unable to confirm or deny the applicant’s version of events during cross-examination, it is not appropriate to record here the account of alleged events.]
5.Later that evening, a CRIS[28] Case Note records that over the intercom system the applicant informed a staff member: [The applicant disputes the further evidence by Jacques and, in the circumstances, it is not appropriate to record the allegation here.]
[28]CRIS stands for Client Relationship Information System.
6.He was permitted to be out of his room for 1 hour during the day without restriction. He remained in his room for the rest day with frequent observations and interactions with staff.
Wednesday 14 December 2016
7.The applicant commenced the day on the [Safety Plan]. He was permitted to be out of his room for 1 hour during the day without restriction.
8.During a period when he was permitted to be out of his room the applicant was in a heightened emotional state, angry that he was on a [M]anagement [P]lan and still angry [about certain allegations made against him in court], and refused to return to his room when requested. He again directed anger and threats towards a particular staff member who he stated that he blamed for his current situation (being on [a Safety Plan]).
9.The applicant eventually returned to his room on condition that he be permitted out of his room later in the day to call his lawyer. This was allowed.
10.He remained in his room for the balance of the day and was cooperative and engaged with staff, in accordance with his [Safety Plan] requirements.
Thursday 15 December 2016
11.Following a management meeting to review all plans then in place it was decided to move the applicant from [a Safety Plan] to an [Individual Plan] as he had commenced engaging constructively with staff.

12.He was informed about behavioural expectations – such as no threats, abuse, or violence and to follow staff direction.
13.The applicant spent time out of his room in the morning, including in the yard. He became abusive to staff, refusing staff directions and making threats. On return to his room he stated over the intercom “can one of you dogs come up here and turn off my fucking light or I will fuck you up”.
14.[The evidence in this paragraph is the subject of a suppression order made 21 December 2016 (“the Suppression Order”)].
15.The applicant remained in his room for the rest day with frequent observations and interactions with staff.
Friday 16 December 2016
16.The day started with the applicant having his [Individual Plan] reviewed and was placed back on to a [Safety Plan] due to negative behaviour [the remainder of the evidence in this paragraph is the subject of the Suppression Order].
17.The applicant was initially abusive to staff and wasn’t engaging, however as the day went on, the applicant became responsive and was engaging with staff.

18. The applicant had a visit from his legal representative.

In addition, the informant with respect to the most recent charges swore a further affidavit which corroborated various matters deposed to by Jacques.

Before continuing with the further evidence in opposition, it is necessary to refer to the Interim Ruling and the reference to an allegation that the applicant had threatened to rape a female staff member. In the Interim Ruling,[29] some significance was attached to the fact that, unlike other matters the subject of Jacques’ evidence, this allegation was not the subject of any cross-examination or other challenge at the hearing of the application.
[29]At [51].

During the course of Jacques’ cross-examination on 21 December 2016, it was put to Jacques, and he accepted, that the applicant had consistently denied this allegation.[30] When I enquired as to why it was that it had not been challenged on the previous occasion, the applicant’s counsel informed the court that the evidence had arisen on the run and that he was without instructions. Accordingly, for the purposes of finally determining this matter, I will proceed on the basis that any allegations referable to this subject matter are in dispute.[31]
[30]See also par 111 below.
[31]The matters not quoted in par 88 above with respect to alleged events on 13 December 2016 also relate to this issue.

On 5 January 2017, Jacques swore a further affidavit which was largely confirmatory of the matters of which he deposed in his 16 December 2016 affidavit. In addition, Jacques stated that Barwon Children’s Remand Centre had been “necessarily opened quickly” and, when first established, the infrastructure was “less than optimal”. Jacques said that since that time there had been significant improvements, and that the services available to, and responses to, the residents accommodated there had improved.

The improvements since 16 December 2016 included the following:

(1) A cooking area for residents.
(2) Direct access to the outdoor recreation area.
(3)Video conferencing facilities, enabling residents to speak to family members and their legal representatives.
(4)A colourbond fence around the perimeter of the remand centre for the purposes of maintaining the residents’ privacy.
(5)A dedicated classroom for education programs, as well as movie nights.
(6)A multi-purpose consultation room for residents to use, including with their legal representatives, cultural support workers and other providers of services.

Jacques also noted that, in his earlier affidavit, he failed to refer to the fact that religious and cultural dietary requirements of the residents are catered for.

From 28 December 2016 to 2 January 2017, only approximately 1 hour per day of classes were available because of the time of year. From 3 January 2017, education classes were recommenced at 5 hours a day, but under a “modified program” given the holiday season. As to the future, it was intended that the hours of education classes would increase from 5 hours a day to 6 hours a day from 30 January 2017. Further, a range of equipment for education purposes, including iPads, keyboards and music recording equipment was intended to be provided within a matter of days.[32]
[32]Cf par 84 above.

During cross-examination on 21 December 2016, Jacques acknowledged that, contrary to the position at Parkville, the dedicated classroom at Barwon Children’s Remand Centre was not a registered school. This meant that there was no accreditation towards the formal education of the residents at Barwon Children’s Remand Centre. Jacques also acknowledged that, again in contrast to Parkville, there were no vocational programs offered at Barwon Children’s Remand Centre, and that such programs were unlikely to be introduced.

In his most recent affidavit, Jacques deposed that the education program has now been improved and formalised. A memorandum of understanding has been entered into with the Secretary to the Department of Health and Human Services and the Secretary to the Department of Education and Training for the provision of an education program to be delivered at Barwon Children’s Remand Centre. Although there are differences to what is offered at Parkville, according to Jacques, the number of hours of education is consistent with what is provided at Parkville.

In contrast to the previous position, residents will now be able to claim credit for their studies towards secondary qualifications. However, Jacques accepted during cross-examination that the position remains that there is no registered school at Barwon Children’s Remand Centre. Further, Jacques could not say whether the accreditation achievable was at the same level as Parkville.

In his evidence on 21 December 2016, Jacques stated there was no intention to increase the number of residents at Barwon Children’s Remand Centre. Jacques has confirmed that the number of residents as at 5 January 2017 remained at 15. However, in giving evidence in court today, he stated that 2 new residents had been located at Barwon Children’s Remand Centre.

Jacques gave evidence of the present situation at Parkville and Malmsbury concerning the number of beds available in secure rooms. Parkville presently has 63 available beds in secure rooms, with 71 high risk clients. This has resulted in 8 clients sleeping in isolation rooms or holding cells. Malmsbury presently has 45 beds in secure rooms, with 47 high risk clients. Two of those clients are being housed in isolation rooms.

It follows that for children on remand, there are no available secure beds presently at Parkville or Malmsbury.

Jacques also gave evidence of the applicant’s conduct at Barwon Children’s Remand Centre from 19 December 2016 until 4 January 2017. It is unnecessary to go into detail with respect to these matters. For present purposes, it suffices to say that after being classified for a period of time from 22 December 2016 as having a “gold” level of behaviour under a program promoting positive behaviour,[33] the applicant has allegedly lapsed into conduct which has been seriously threatening to staff and other residents, and destructive of a significant number of items of property at Barwon Children’s Remand Centre. The matter has been referred to police. The court was informed it is expected charges will be laid.
[33]Jacques gave evidence of a 3 tier “promoting positive behaviour program”, under which gold is the highest level achievable. Silver is awarded for standard acceptable behaviour and bronze for general behaviour less than that.

Jacques could not say what medication the applicant was taking at the time, or whether the absence of medication might explain the applicant’s conduct. The applicant did not seek to include any psychiatric or other medical evidence on this issue.

Whilst the applicant had no obligation to respond to such possible allegations, his counsel acknowledged there was “an incident” involving the applicant. Photographic evidence was before the court which showed the damage was substantial and widespread. The court was also informed there is closed circuit television footage of the alleged events (though that evidence was not before the court).

During cross-examination today, Jacques frankly acknowledged that when he arrived at Barwon Children’s Remand Centre things were “chaotic”. This is no doubt a reflection of the findings made in Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children, as follows:[34]
[34][2016] VSC 796, [169] (Garde J). See also [178].

I find that the right in s 10(b) of the Charter is engaged. There is evidence that one or more young persons have, or may have, been subject to a breach of s 10(b) by reason of the harsh conditions at the Grevillea unit of the Barwon Prison at least in the first two weeks of its occupancy as a remand centre including:
(a)very long periods of solitary and prolonged confinement of young people in cells formerly used for high security adult prisoners;

(b) uncertainty as to the length and occurrence of lockdowns;
(c) fear and threats by staff against young persons;
(d)the use of SESG[35] inside the Grevillea unit, including German Shepherd dogs;
[35]Security and Emergency Services Groups of Corrections Victoria at Barwon Prison.

(e) the use of handcuffs on young people when moving to outdoor areas;
(f) the noise of loud banging on the doors or screaming;
(g)the failure to advise young people of their rights or the rules of the centre;
(h)the general lack of space and amenities for young persons and the limited opportunity to use the space and amenities available;
(i)the absence or very limited opportunity for education or other pursuits; and

(j) the absence of family visits or access to religious services or advisers.

Save for the last of these matters, the applicant relies on these findings of Garde J in this application.[36]

[36]There was no objection to this approach, but submissions were made, in opposition by the Attorney-General, to the effect that it is the present circumstances and those in the reasonably foreseeable future, rather than those in the past that are the relevant circumstances. It is unnecessary to address this for the purpose of determining this application.

D. Further evidence on behalf of the applicant

The applicant’s solicitor and counsel attended at Barwon Children’s Remand Centre on 16 December 2016. The applicant’s solicitor gave affidavit evidence of the visit, including attending a conference with the applicant held in the classroom. The applicant’s solicitor stated that, at that time, the classroom consisted of 1 table in the middle of the room with 3 chairs around it and a further table pushed up against the wall with 4 chairs stacked next to it. The classroom also had a whiteboard. Further, the materials in the classroom comprised a dictionary, a thesaurus, 2 non-fiction books placed on the ground, 3 folders and a number of “loose worksheets” on the ground.

Because of the noise of instruments, table tennis and the interaction of the residents and staff on the Side A unit floor, it was difficult to maintain a conversation with the applicant. The solicitor observed that, at that time, the classroom was also used to facilitate video conferencing for court proceedings. The conference with the applicant was cut short so that the video conferencing equipment could be brought in and set up.

During the course of the conference, the applicant informed the solicitor that:

(1) The teachers arrive around 9 am and leave in the afternoon.
(2)Structured lessons are not provided in the classroom or on the unit floor of Side A. According to the applicant, the teachers provide worksheets but they primarily play cards or table tennis, and talk with the residents rather than provide formal education.
(3)The worksheets provided to the applicant are of a grade 7 or 8 level and do not challenge him.
(4)The applicant does not have access to a computer or iPad for learning purposes.
(5)There are no vocational programs.
(6)There are 2 guitars and a ukulele available for music classes (the applicant cannot play these instruments).
(7)Colouring books are provided as art classes. The applicant enjoys art and it is important to him but colouring books do not enrich him.
(8)The outdoor gym workouts are provided as physical education classes.

During the discussions with the applicant, his solicitor and counsel were shown the outdoor area. The applicant had to be handcuffed and escorted by 2 staff members to access this area. The applicant informed the solicitor that only 6 children were allowed outside at any 1 time and that there were no basketballs available as they had become stuck in the barbed wire roof.

The applicant also informed the solicitor that he had been on a Management Plan since 11 December 2016 and that he had been on “23 hour lockdown” since that time. Accordingly, he was only being released from his cell for 1 hour each day.

With respect to the allegation made that the applicant threatened to rape a female staff member, the applicant denied the allegation.[37] The applicant admitted he verbally abused the staff member in question, but said he never made this specific threat to her or anyone else. In addition to responding to various other matters, the applicant stated that:

(1)The allegation that he threatened to rape a female staff member was reported on televised news that he and other residents watched and that this had caused him great distress.
(2)He had been thinking about his experience in Africa where he witnessed multiple people being murdered and dead bodies in the street.
(3)He had trouble sleeping at night and he could hear adult prisoners yelling over the walls.
(4)He had not seen his mother or other family members.
(5)Since the time of the events involving the staff member referred to in the chapeau above, he had not seen a doctor or a psychologist.[38]

[37]See Interim Ruling, [48] and [51].

[38]Jacques stated on 21 December 2016 that the applicant had made an appointment, but later told his unit supervisors that he no longer wanted to keep the appointment.

In addition, the applicant’s solicitor gave evidence of certain matters that are the subject of the Suppression Order.[39]
[39]Although these matters are not expressly referred to, they have been taken into account in determining the application.

E. Observations on conditions under which the applicant is being held

The state of the evidence concerning the conditions at Barwon Children’s Remand Centre, both generally and also specifically with respect to the applicant, is concerning. Although there has been progressive improvement over time, there can be little doubt that the conditions at Barwon Children’s Remand Centre are far from ideal.

Barwon Children’s Remand Centre was built to be an adult prison. The overwhelming impression given from the building and its surrounds is that Barwon Children’s Remand Centre is an adult prison and not a centre for holding children on remand, notwithstanding it now is a remand centre for the purposes of the Children, Youth and Families Act. Given the location, structure and surrounds of Barwon Children’s Remand Centre, it is difficult to envisage that, whatever measures are taken with respect to programs and other resources that might be made available to the residents, this distinct impression will materially change.

Further, the manner of operation of Barwon Children’s Remand Centre from late November 2016 to at least 19 December 2016 suggests little by way of measures being taken with respect to rehabilitation. It would seem that the promise of further facilities and resources in the future for the residents is an acknowledgment that, at least until 19 December 2016, the situation was less than satisfactory.

That said, it is important to keep in mind the role of the court on an application such as this. As I explained in the Interim Ruling,[40] there is a direct relationship between the provisions of the Charter and the Bail Act, and the conditions under which the applicant is being held is relevant to the outcome of the application. However, as the Court of Appeal expressly acknowledged, it is not the role of the court to concern itself with the merits of the decision to establish a youth detention centre at Barwon Prison.[41]

F. Position adopted with respect to the Charter

[40]At [56]-[60].

[41]Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343, [10] (Warren CJ, Maxwell P and Weinberg JA).

F.1 Previous position

In the Interim Ruling, the following was stated:[42]
[42]At [78]-[79].

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.

F.2 Applicant’s further submissions

On 21 December 2016, in contrast to the previous position adopted, the applicant’s counsel made submissions to the effect that there had been a contravention of s 25(3) of the Charter. It was submitted that bail and remand were part of the pre-hearing criminal procedure, and, therefore, the applicant had a right to a remand and bail procedure which takes account of his age and the desirability of promoting his rehabilitation. No specific submission was made as to the meaning of “a procedure” for the purposes of s 25(3) of the Charter, beyond submitting that remand itself was a procedure and it followed that “the environment in which [the applicant] is held, the services which are made available to him whilst on remand, the access to education, medical treatment and so on, all form part of the remand procedure”.

Further, no submission was made with respect to the obvious tension between a child being on remand and therefore presumed to be innocent, and a child needing to be the subject of rehabilitation.

F.3 Attorney-General’s further submissions

The Attorney-General intervened in this application to make submissions with respect to the Charter.[43] After the Interim Ruling, the Attorney-General made further submissions, some of which gave useful background and analysis of the provisions of the Charter in question. In the circumstances, it is appropriate to elaborate on the meaning and scope of these provisions.
[43]Interim Ruling, [40].

F.3.1 Section 17(2)

Section 17(2) of the Charter provides in general terms for the right of every child, 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 17(2) is modelled on,[44] but not identical to, art 24(1) of the International Covenant on Civil and Political Rights (“the Covenant”).[45] It is also similar to art 3(1) and (2) of the Convention on the Rights of the Child (“the Convention”).[46]
[44]Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic), 14.
[45]International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[46]Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

It is generally not considered to be in the best interests of a child deprived of liberty to be placed in an adult prison or other facility for adults.[47] To protect the best interests of children who are deprived of liberty, State parties to the Convention are to ensure the following:[48]
[47]Ibid, art 37(c), however, with respect to Australia, the following reservation was made: “Australia accepts the general principles of article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37(c).” See also United Nations Committee on the Rights of the Child, General Comment No. 10: Children’s Rights In Juvenile Justice, 44^th sess, UN Doc CRC/C/GC/10 (25 April 2007) (“Convention General Comment No. 10”), [85].
[48]Convention General Comment No. 10, [85], [87] and [89].

(1)Separate facilities are established for children deprived of their liberty, which include distinct, child-centred staff, personnel, policies and practices.
(2)The child's right to maintain contact with her or his family, including by placing the child in a facility as close as possible to the place of the family’s residence in order to facilitate visits.
(3)A physical environment and accommodation in keeping with the rehabilitative aims of residential placement, with due regard given to the child’s need for privacy, sensory stimuli, opportunities to associate with peers, and to participate in sports, physical exercise, arts and leisure time activities.
(4)Every child of compulsory school age has a right to education suited to her or his needs and abilities, and designed to prepare her or him to return to society, and that every child should receive, where appropriate, vocational training in occupations likely to prepare her or him for future employment.
(5)Every child receives adequate medical care throughout her or his detention, provided, where possible, by health facilities and services of the community.
(6)The promotion and facilitation of frequent contact of the child with the wider community, including communications with family, friends and other persons or representatives of reputable outside organisations, and the opportunity to visit her or his home and family.
(7)Any disciplinary measure is consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care, and that corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child be strictly forbidden.

Although “best interests” is not defined in the Charter, some guidance on its content is provided by the equivalent term under Victorian legislation and international human rights law. In particular:

(1)Section 10 of the Children, Youth and Families Act sets out “best interests principles” that decision-makers must have regard to when making decisions under the Act[49] (other than decisions concerning children and the criminal law made under Chapter 5 or Chapter 7 of the Children, Youth and Families Act[50]). Section 10(2) requires that “[w]hen determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development … must always be considered”. Section 10(3) provides a further list of considerations relevant to the question of what is in a child's best interests in decisions made under the Act. To a significant extent, these considerations are reflected in s 3B of the Bail Act.
(2)At international law, what is in a child’s best interests will depend on the individual circumstances of the child, and the particular decision being made.[51]
[49]Children, Youth and Families Act, s 8(2).
[50]Children, Youth and Families Act, s 8(4).
[51]See United Nations Committee on the Rights of the Child, General Comment No. 14: The Right of a Child to have his or her Best Interests Taken as a Primary Consideration (art.3, para.1), 62^nd sess, UN Doc CRC/C/GC/14 (29 May 2013), [32].

F.3.2 Section 22(1)

Section 22(1) of the Charter provides that: “[a]ll persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person”.

In Castles v Secretary to the Department of Justice,[52] Emerton J stated that, in analysing the scope of s 22(1) of the Charter, “the starting point should be that prisoners not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty”.[53] However, her Honour noted that a necessary consequence of the deprivation of liberty was that “[r]ights and freedoms which are enjoyed by other citizens will necessarily be ‘curtailed’, ‘attenuated’ and ‘qualified’ merely by reason of the deprivation of liberty”.[54]
[52](2010) 28 VR 141.
[53]At 169, [108].
[54]At 170, [111], referring to R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 537 [5] (Lord Bingham).

In De Bruyn v Victorian Institute of Forensic Mental Health,[55] Riordan J considered comparative jurisprudence on the right to humane treatment when deprived of liberty.[56] His Honour noted[57] that the New Zealand Supreme Court had considered such matters in Taunoa v Attorney-General.[58] He referred to the judgment of Blanchard J in that case,[59] who described the purpose of the right as:[60]

protecting a person deprived of liberty and therefore particularly vulnerable (including a sentenced prisoner) from conduct which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so.

[55][2016] VSC 111.

[56]At [114]-[124].

[57]At [115].

[58][2008] 1 NZLR 429.

[59]At [116].

[60][2008] 1 NZLR 429, 501-502 [177]; (McGrath J agreeing at 544 [340]).

While the scope of s 22(1) of the Charter, and its potential limitation, has not been considered in any detail by this court against particular facts of detention, concern has been expressed that certain conditions of detention may fall short of the standard required by s 22(1). For example, in Dale v Director of Public Prosecutions,[61] the Court of Appeal noted that the conditions of detention of a dangerous prisoner, which included solitary confinement, strip searches and shackling with leg irons when out of the unit, might raise questions under s 22(1), though it declined to express a view on the matter.[62] The discussion concluded[63] by referring with approval to a passage from the decision the subject of appeal:[64]

The fact remains that, if it be the case that unconvicted members of our society must be detained, they must be provided with accommodation which suits the requirements of their detention. Unlike a sentenced prisoner, they are not undergoing punishment. It is for this reason not appropriate that they be detained with prisoners undergoing sentence.
[61][2009] VSCA 212.
[62]At [35]-[38] (Maxwell P, Nettle JA and Lasry AJA).
[63]At [39].
[64]Re Dale [2009] VSC 332, [16] (Byrne J).

F.3.3 Section 22(3)

Section 22(3) of the Charter provides that: “[a]n 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 22(3) must be construed within the broader context of s 22. Section 22(1) provides the general right of all persons deprived of liberty to be treated with humanity and dignity. Section 22(3) has a different and narrower scope. It extends beyond segregation from convicted prisoners (which is provided by s 22(2) of the Charter) to “appropriate” treatment. It requires differential treatment that emphasises a person’s status as an unconvicted person who enjoys the right to be presumed innocent.[65]
[65]See par 127 above. Cf United Nations Human Rights Committee, General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of their Liberty), 44^th sess, UN Doc. HRI/GEN/1/Rev.1 (1994), [9].

In Cabal and Pasini v Australia,[66] the United Nations Human Rights Committee observed that this differential treatment may include privileges such as being able to wear one's own clothes, make telephone calls and eat one's own food.[67]
[66]Communication No. 1020/2001, UN Doc. CCPR/C/78/D/1020/2001 (2003).
[67]At [7.5].

F.3.4 Section 25(3)

Section 25 of the Charter protects a range of rights applicable to persons charged with a criminal offence, which have been described as the elements that a “fair hearing” requires.[68] Section 25(3) provides that: “[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 a child's rehabilitation”.
[68]Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, 425 [40] (Warren CJ).

Section 25(3) is modelled on art 14(4) of the Covenant.[69] It is generally accepted that, so far as possible, juveniles should not be detained before trial.[70] This is reflected in s 3B(1)(a) of the Bail Act. Comparative authority on equivalent protections suggest that s 25(3) requires a detained child to be treated in a manner consistent with the promotion of the child’s dignity and worth, including through measures to ensure the child understands and is able to effectively participate in the criminal process.[71] These principles should be applied “throughout the entire process of dealing with the child, from the first contact with law enforcement agencies all the way to the implementation of all measures for dealing with the child”.[72]
[69]Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic), 18.
[70]United Nations Human Rights Committee, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 90^th sess UN Doc. CCPR/C/GC/32, (23 August 2007), [42].
[71]See, for example, V v United Kingdom (2000) 30 EHRR 121, 179 [86]; SC v United Kingdom (2005) 40 EHRR 10, 237 [28]; Convention General Comment No. 10, [13].
[72]Convention General Comment No. 10, [13].

F.4 Assumptions made

As noted above,[73] circumstances pertaining to the establishment of Barwon Children’s Remand Centre and the infringement of certain rights under the Charter have been the subject of findings by Garde J, which are to be the subject of review by the Court of Appeal in due course. In circumstances where it is not strictly necessary for me to make findings with respect to the Charter in order to dispose of this application, I will proceed on the same basis that I did when making the Interim Ruling without making any actual findings concerning any contravention of the Charter.
[73]See pars 7-10 above.

In summary, I will proceed on the assumption that since the applicant’s detention at Barwon Children’s Remand Centre each of his rights under ss 17(2), 22(1) and 22(3) have been contravened as set out in paragraph 78 of the Interim Ruling. Further, in light of the applicant’s further submissions, without making an actual finding I will proceed on the assumption that the applicant’s right under s 25(3) of the Charter to a procedure that takes into account his age and the desirability of promoting his rehabilitation (to the extent it might be applicable[74]) have also been contravened.
[74]See par 119 above.

G. Recent developments with respect to present charges

Details of the charges the applicant is presently facing are set out in the Interim Ruling.[75] Since the time the Interim Ruling was made, the resolution of the charges has progressed substantially.
[75]At [2]-[16].

With respect to the first set of charges,[76] the applicant will plead guilty to robbery (pursuant to s 75(1) of the Crimes Act 1958 (Vic)), being the robbery of a phone, and assault in company (pursuant to s 24(2) of the Summary Offences Act 1966 (Vic)), on the basis of a single punch to the victim’s stomach. All other charges, including the charge of armed robbery, are to be withdrawn.
[76]Interim Ruling, [2].

With respect to the later charges concerning the theft of a motor vehicle (pursuant to s 74 of the Crimes Act),[77] the applicant will plead guilty to both charges on the basis that he was a passenger in the car.
[77]Interim Ruling, [3].

With respect to the charges concerning unlawful assault and wilful damage (both under the Summary Offences Act),[78] the applicant will plead guilty.
[78]Interim Ruling, [4]. The charges are made pursuant to ss 23 and 9(1)(c) respectively.

With respect to the charge of theft of a motor vehicle (pursuant to s 74 of the Crimes Act),[79] the applicant will plead guilty on the basis that he was a passenger in the car.
[79]Interim Ruling, [14].

In relation to the charges involving theft from a shop (pursuant to s 74 of the Crimes Act),[80] the applicant will plead guilty to both charges.
[80]Interim Ruling, [14].

As to the last set of charges,[81] the court was informed that negotiations are continuing, and that, although there is still some prospect of resolution, it will still take some time in light of ongoing investigations by police. For convenience, those charges are:

(1)       Armed robbery.
(2)       Theft of a motor vehicle.
(3)       Assault with a weapon.
(4)       Committing an indictable offence whilst on bail.
[81]Interim Ruling, [15].

H. Determination of the application

For reasons explained in the Interim Ruling,[82] the applicant is in a show cause situation. In those circumstances, the applicant is not entitled to bail unless he shows why his detention in custody is not justified.[83]
[82]At [35].
[83]Bail Act, s 4(4)(a).

As explained in the Interim Ruling, there is some controversy as to the correct approach to be taken in this situation.[84] However, as before, the consideration of the Crown’s obligation to discharge its onus of establishing that the applicant is an “unacceptable risk”,[85] whether as part of the show cause test or separately, results in the same outcome.
[84]At [36].
[85]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:

The hearing of this bail application has been unusually protracted in light of the unique circumstances surrounding the lawfulness of the detention of the applicant. However, in substance, much of the evidence relevant to the consideration of whether or not the applicant has shown cause, including whether or not he represents an unacceptable risk, has remained unchanged.

That said, the focus of the relevant considerations has shifted somewhat. When asked by the court as to what charges would justify the applicant remaining on remand given the resolution of several of the charges reached to date, reliance was placed by the informant upon the most recent charges, together with the allegations of misconduct of the applicant earlier this week.

With respect to the outstanding existing charges, it is the charge of armed robbery that is essentially relied upon by the informant. As noted in the Interim Ruling,[86] there are some serious difficulties with identification evidence of the 3 witnesses in question. More recently, these difficulties have been compounded by those 3 witnesses being unable to positively identify the applicant from a photo board identification process conducted by the police. However, I also refer to the concession made on the previous occasion that there was “a reasonably strong circumstantial case” with respect to the charge of the theft of a motor vehicle. This is also sought to be relied upon by the informant in establishing the applicant’s involvement in the armed robbery.[87]
[86]At [86].
[87]Ibid.

Regrettably, there has been delay in obtaining records in relation to mobile phone records. Those records are expected to be available by the end of the month. The informant sought to inform the court from the bar table as to the state of the investigations to seek to strengthen the status of the case, but this was not the subject of any evidence. However, on reflection, it was accepted that this approach was not appropriate.

Accordingly, the extent of the evidence with respect to mobile records is as per the statement made by the informant which demonstrates that call records that have been made available around the time of the armed robbery show that the applicant was in the Collingwood, Carlton and Abbottsford areas on 10 September 2016 when the armed robbery allegedly took place in Fitzroy, and in Dandenong on 12 September 2016, at the time the stolen vehicle allegedly was left in that suburb. Accordingly, the state of the evidence presently is that the call records are consistent with the particulars of the charge, but are not highly probative.

With respect to the allegations made of the applicant’s conduct this week, it appears there is a strong case against the applicant that he has committed assaults and caused significant property damage. Further, the allegations and the evidence available strongly suggests that the applicant presently is in a volatile and unstable state of mind. Although some of the evidence shows that in recent times he has been capable of behaving well, the evidence also suggests that the applicant has repeatedly behaved inappropriately towards staff and fellow residents since 22 December 2016, and perhaps before then.[88]
[88]See pars [88] and [102]-[104] above.

All of the charges, except those referred to in paragraph 141 above, are listed to be heard in the Children’s Court next Tuesday, 10 January 2017. The applicant’s counsel indicated that a supervisory order would be sought on that occasion with respect to each of the charges that are said to be the subject of a guilty plea. No agreed view was expressed as to the prospects of such a position, but the applicant submitted that there would be little point in adopting this position if the applicant remained on remand with respect to the remaining charges. As such, it was possible that the matters would be adjourned to the contested committal at the end of January 2017.

That said, the court was informed by the Attorney-General’s counsel that if a custodial sentence was imposed next Tuesday, the applicant would be treated as a sentenced child rather than a child on remand. The court was further informed that, if such a course were to eventuate, the applicant would be transferred from Barwon Children’s Remand Centre to Malmsbury.

I refer to my reasons in the Interim Ruling, including considerations of the factors referred to in s 3B of the Bail Act.[89] I will not repeat those reasons here. Having considered all the evidence, including the evidence made available on the view, and the improvements that have been made since that time, I continue to have misgivings about the conditions under which the applicant is, and has been, detained. Notwithstanding those misgivings, and taking into account the human rights of the applicant and proceeding on the assumption that they have been and continue to be contravened, in my view the evidence demonstrates the Crown has discharged the onus of establishing the applicant is an unacceptable risk of committing offences whilst on bail, or endangering the safety or welfare of members of the public.[90] In short, the seriousness of the remaining charges, and the recent violent and volatile conduct of the applicant mean that the relevant risk remains unacceptable. Further, the past and present conditions imposed upon the applicant do not result in that risk being characterised as an acceptable risk.
[89]At [80]-[96].
[90]The informant no longer relies upon a contention that the applicant would be an unacceptable risk to fail to surrender himself to custody in answer to his bail: see Interim Ruling, [82].

In light of the above matters, the applicant has failed to show cause as to why his detention in custody is not justified.

Accordingly, the application for bail is refused.

---

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.

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6 JANUARY 2017