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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application for Bail By HL (No 2)

Details

AGLC: Application for Bail By HL (No 2) [2017] VSC 1
Case: [2017] VSC 1
Decision Date: 6 JANUARY 2017

CaseChat Overview and Summary

The case involved an application for bail by a minor, referred to as HL, in the County Court of Victoria. HL was charged with multiple indictable offences while already on bail, leading to a situation where the court had to determine whether the risk posed by the accused was unacceptable, justifying the refusal of bail. The application raised complex issues concerning the principles of the Bail Act 1977 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court was required to weigh the seriousness of the new charges against the rights of the child under the Charter, including the right to liberty and security, and the right to a fair trial.

The central legal issues included whether the new charges constituted a "show cause" situation, where the court must consider the risk of unacceptable harm if bail is granted. The court also had to assess whether the conditions of remand for the child were appropriate, considering the potential impact on the child's human rights. The decision hinged on balancing the severity of the alleged crimes with the rights of the child, including the right to a fair trial and the right to be treated in a manner appropriate for a minor. The court examined the child's background, the nature of the charges, and the risk of reoffending.

The County Court found that the new charges were serious enough to constitute a show cause situation, and that the risk of unacceptable harm to the community, if bail were granted, outweighed the child's right to liberty. The court considered the child's age, the seriousness of the new charges, and the potential for the child to reoffend. The court held that the risk was unacceptable and that the child's rights under the Charter could be balanced with the need to protect the community. The court determined that the child should remain in remand, considering the human rights implications but prioritising the safety and rights of the community.

The court's final order was that the application for bail by HL was refused. The child remained in remand, subject to the conditions outlined by the court, which aimed to balance the child's rights with the need for community protection. The decision underscored the importance of considering the unique circumstances of a minor in the criminal justice system, while also recognising the paramount importance of public safety.

Orders