C (a child) v The State of Western Australia - [2011] WASC 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: C (a child) -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 164

CORAM: SIMMONDS J

HEARD: 1 JUNE 2011

DELIVERED : 1 JUNE 2011

FILE NO/S: INS 41 of 2011

BETWEEN: C (a child)
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Criminal damage by fire - Child

Legislation:

Bail Act 1982 (WA), sch 1 pt C, cl 2
Young Offenders Act 1994 (WA), s 7

Result:

Bail granted with conditions

Category: B

Representation:

Counsel:

Applicant: Mr A E Monisse
Respondent: Mr B Standish

Solicitors:

Applicant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dabag v The State of Western Australia [2005] WASC 22
Milenkovski v The State of Western Australia [2011] WASCA 99

SIMMONDS J:
[These reasons were delivered orally and have been edited from the transcript].

Introduction

This has been an application for bail. The hearing has consumed some significant period of time because the background factual information is not straightforwardly apparent from the file, as is evident from the transcript of previous hearings including, I regret to say, one before me. The application before me today is by a person (C) who has been charged with one count of wilfully and unlawfully damaging a property by fire. The trial on that count is listed to commence in this court on 7 June 2011 and to run for three days. Accordingly, the judgment that I am delivering today is suppressed from publication until further order.
I also note that the applicant is a child, having been born on 12 December 1993, and the provisions of the relevant State legislation having to do with the publication of the names of a person involved in proceedings before a court who is a child would also in any event apply.

Background

The application before me was made on 19 May 2011 and it is necessary to provide a little background to what transpired subsequently.
At a status hearing before Jenkins J on 19 May 2011, her Honour was told that the Children's Court had granted the applicant supervised bail on a charge for that offending behaviour. It was not made plain to her Honour when that bail had been granted, nor what supervised bail meant in the circumstances. However, it was the case, and this was common ground between the parties, that there had been a charge for that behaviour before the Children's Court, which, on 14 January 2011, had been sent up to the District Court; and that the District Court had itself committed the matter to this court for trial in view of the maximum penalty for the offence, namely, life imprisonment.
The question in hearings subsequent to the committal of the matter to this court, and prior to 19 May 2011, indicates some unclarity with respect to whether the applicant was on bail on the criminal damage by fire charge at any time at which he was to appear before the Supreme Court. However, it is now clear to me, as a result of an exploration of the relevant issues with counsel, that bail had indeed been granted by the Children's Court in relation to the charge for what became the offence before this court; and that bail had been granted at least as early as on or about 20 August 2010. It had then been granted on supervised bail conditions with a responsible adult undertaking. What that undertaking involves I will reach later.
There may have been a previous grant of bail in July 2010 without any bail conditions, on papers provided to me. In any event, the bail granted on or about 20 August 2010 was renewed, on or about 3 September 2010 at least, conceivably also earlier, on supervised bail conditions which I would take it to be the same, and with the responsible adult undertaking which I would also take to be the same.
The supervised bail conditions that were imported by these bail arrangements are ones set by the relevant juvenile justice officer. Their terms, so far as they appear to me, emerge from a document called the Placement Consent Form that was provided to me at the hearing today. The Placement Consent Form indicates that C agreed to arrangements by which he undertook to provide regular telephone contact with a bail coordinator; not to commit any further offences; not to depart from the accommodation he was required to be in without permission; not to engage in any what was called 'unacceptable behaviour'; not to have any drugs or illicit substances, including I note alcohol and cannabis; to be subject to curfew arrangements; to present to police officers who might be checking curfew; and actively to seek employment.
However, in December 2010 C was returned to custody as a result of him having been charged with either three or four offences. I had prosecution notices for three; I was told of a fourth by counsel for the applicant. The three offences for which I have prosecution notices are one of attempted burglary, one of burglary and one of stealing. The further offence mentioned to me was, as I understood it, unlawful possession. It was not in contest that that taking into custody on those charges ended the applicant's bail in relation to the criminal damage charge. It is also not in contest that, of the three charges referred to, at the least the burglary offence was a serious offence within sch 2 of the Bail Act 1982 (WA), as was the criminal damage by fire charge, which meant that bail on at least that offence was one falling within sch 1 pt C cl 3A. Bail on the criminal damage by fire offence would not, however, fall within cl 3A. The significance of that will emerge shortly.
So far as I am able to tell - and this is most definitely a matter which it is difficult to extract, even from what I was told - bail was subsequently granted on the criminal damage by fire charge by the District Court. Bail had previously, so far as I can tell, been granted by the Children's Court on the other charges, the three or four I have referred to, sometime in mid‑January 2011. But subsequently that bail on those charges was withdrawn, on 14 February 2011, then granted again or reset, on 18 February 2011. There was also apparently bail granted by the Children's Court on 2 March 2011, referred to in a report by a senior community corrections officer, a Ms Chadwick, undated but presented to me today. That report indicates that that bail, which I would have to assume would have been on the three or four charges I referred to, was withdrawn the next day, 3 March 2011, as a result of what Ms Chadwick's report indicates as 'irrational' behaviour and the possession of weapons.
As a result of the withdrawal, C was taken back into custody and this again ended bail on the criminal damage charge. At the hearing on 19 May 2011 before Jenkins J, her Honour made an order under the Bail Act s 24A, when she was informed of the application for bail, that a community corrections officer prepare a report on whether any suitable places for C to reside while on bail and if so, what conditions might be imposed on such bail.
The report of Ms Chadwick was the report produced in response to that order. Ms Chadwick's report is carefully expressed as I noted in exchange with counsel. On page 2 of the report Ms Chadwick indicates that she did not feel competent to make a thorough assessment of the applicant without access to the record of the applicant's contact with juvenile justice services. Further, she noted that the applicant had been unable to provide a residential address that could be assessed for bail, and hostel accommodation was currently at a premium, with no vacancies to be found.
Most hostels used by adult offenders, she added, may also be considered to be unsuitable for a young person, a matter which I accept Jenkins J herself also noted at the hearing on 19 May 2011. At the hearing before me the matter of a possible residential address associated with a person the applicant well knew was addressed at some length. Both before the luncheon adjournment and with the benefit of additional information obtained over it, by both the State and by the defence, the matter was further addressed after that adjournment.
It follows that I do not have the benefit of an evaluation, of the residential arrangements that I will shortly describe, by the Community Corrections officer. That is to be regretted, but it seems to me that it is one of the consequences of the difficulties under which community corrections officers labour in what I accept are resource-limited conditions. Those resource limited conditions are much to be deplored.
In the balance of these reasons I set out the applicable principles to the grant or refusal of bail in this case involving a child. I then review the application of those principles to the circumstances as I have them. The final section of my reasons is my conclusion.

Applicable principles

As to the principles applicable it is necessary to set out the relevant provisions of the Bail Act.
They are, primarily - and I will return to why I say primarily in a moment - sch 1 pt C, cl 1(a), cl 1(e), cl 3 and cl 2. The provisions of sch 1, pt C, cl 1(a) and (e) are:
1.Bail before conviction to be at discretion of bail authority, except for a child
Subject to clauses 3A and 3C, the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant -
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
…
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
I note that as to cl 1, the opening words which refer to subject to cl 3A, has no application here. The application for bail is not in respect of a serious offence alleged to have been committed while the applicant was on bail for another serious offence. It is, rather, the initiating serious offence for which the applicant for bail seeks that provision.
Schedule 1 pt C cl 3 is:
(3)The right of a child accused under subclause (2) is subject to -
(a)clauses 3A and 3C; and
[(b)deleted]
(c)there being imposed as a condition on the grant of bail a requirement that before the release of the child on bail a responsible person undertakes in writing in the approved form to ensure that the child complies with any requirement of his bail undertaking mentioned in section 28(2)(a), (b), (c) and (d).
The reason why it is appropriate for me to remind myself of the text of these provisions, as well as of cl 2 which I will reach in a moment, is because of the general approach to these provisions as described in the most important recent Court of Criminal Appeal decision of Milenkovski v The State of Western Australia [2011] WASCA 99. That decision, it seems to me, now sets the way in which any officer of any court approaching the grant of bail in this State must undertake his or her task.
In particular, reference to principles of the common law that predate the Bail Act should be avoided. I have to confess that I myself have not avoided them, as indicated by my decision in Dabag v The State of Western Australia [2005] WASC 22 [13] ‑ ]15]. Rather, as Milenkovski at [21], [22], [27], [35] and [44] in the judgment of her Honour McLure P, with Pullin JA and Hall J agreeing in relevant part, indicates bail must be approached in terms of the language of the Bail Act rather than by reference to secondary sources, as her Honour called them, like the common law. I particularly note the approach to cls 1 and 3 of pt C sch 1 that her Honour describes at [39] to [43]:
There remains the proper construction of the general provision in cl 1 of pt C. It contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction who is required to have regard to the questions in pars (a) - (g) and to any other questions which the decision-maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) - (g). There are a number of significant points to note. First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
The word 'may' in pars (a) and (d) of cl 1(a) means the possibility of the relevant event occurring: see cl 1(e)(i). For example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility he would fail to appear in court in accordance with his bail undertaking. In answering that and the other questions in cl 1(a), the court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C. It is self-evidently the case that the seriousness of the offence, with or without regard to the maximum penalty for it, does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The court is required to have regard to all of the questions in cl 1 and the matters in cl 3 in the exercise of the discretion to grant or refuse bail.
It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused for it if the accused is convicted are sufficient to enable the court to conclude that the accused may fail to appear in court in accordance with his bail undertaking, and the existence and extent of that possibility may, having regard to the answers to all the other mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach (for or against bail) is inconsistent with the approach required of decision-makers under the Bail Act.
What her Honour indicates is that the court responsible for the consideration of bail must - not may - address the questions listed in sch 1 pt C cl 1 of the bail legislation. However, that reduces, in my understanding of her reasons, to the question of whether there is any material before the court relevant to the answering of those questions, and in particular whether the State has put forward any material relevant to the answering of those questions which it contends represents a proper foundation for the refusal of bail.
It may be noted I have not at any point thus far used the language of onus. Her Honour has pointed remarks to make about the use of such language, strongly advising a judicial officer to avoid it. I seek to do that.
For my purposes, I have noted that no material relevant to questions arising under the following parts of cl 1 were drawn to my attention by either counsel or otherwise appear to me. Those provisions are cl 1(a)(iii) and (iv), 1(b), 1(d) and 1(f) and (g), although (f) would not on its terms apply in any event.
Clause 1(c) of course is satisfied here. The prosecutor has indeed put forward grounds, strongly argued, for opposing the grant of bail. As I understand the submissions, they were addressed to cl 1(a)(i) and (ii) and cl 1(e) when read with, in the case of cl 1(a), cl 3(a) through (d).
I now set out sch 1 pt C cl 2:
2.Child to have qualified right to bail
(1)In this clause -
responsible person means a parent, relative, employer or other person who, in the opinion of the judicial officer or authorised officer, is in a position to both influence the conduct of the child and provide the child with support and direction.
(2)Subject to subclause (3), a child accused who is in custody awaiting an appearance in court before conviction for an offence has a right to be granted bail unless -
(a)in the opinion of the judicial officer or authorised officer in whom jurisdiction is vested -
(i)one or more of the questions set out in clause 1(a), (b), (d) and (g) must be answered in the affirmative; and
(ii)there is no condition which he could reasonably impose under Part D which would satisfy the relevant provision of clause 1(e);
or
(b)there is no responsible person willing to enter into an undertaking of the kind described in subclause (3)(c),
and if the child is refused bail he shall be dealt with in accordance with section 19(2) of the Young Offenders Act 1994.
Clause 2 applies here because the applicant is a child. Clause 2(2) is stated to be 'Subject to subclause (3)'. Subclause (3)(c) in material part requires a condition to be set on the grant of bail that before the release of the child on bail, a responsible person undertakes in writing in the approved form to ensure that the child complies with any requirement of his bail undertaking mentioned in s 28(2)(a), (b), (c) and (d). The responsible person is defined in cl 2(1), and the requirement in cl 3(c) as well as a requirement or a provision in subcl (2)(b) has no application if it appears to be that the accused is over the age of 17 years - the applicant in this case is - but in addition has sufficient maturity to live independently without the guidance or control of a parent or guardian. I am not satisfied that last has been made apparent to me, on the basis of the history of the applicant in relation to previous grants of bail and otherwise.
Accordingly, the responsible person provisions, most notably 3(c) and 2(b), have application here.
The effect of cl 2 is that a child accused who is in custody awaiting an appearance before conviction for an offence has a right to be granted bail unless, in this case by cl 2(2)(a) one or more of the questions set out in cl 1(a)(i) and (ii) must be answered in the affirmative; and there is no condition which I could reasonably impose under pt D of sch 1 which would satisfy the relevant provision of cl 1(e). Counsel for the State properly acknowledged that the words 'must be answered in the affirmative' set a stronger standard than the standard which would apply in an ordinary or general bail case, one not involving a child, where the matter fell to be resolved by reference to the mandatory questions in cl 1.

The matter of no condition which I could reasonably impose under pt D is a matter that I will particularly return to, but there is a further implication. There is no right a child has to bail not only where I am satisfied one or more of the questions must be answered in the affirmative and no condition could reasonably be imposed, but also in a case where there is no responsible person willing to enter into an undertaking of the kind described in subcl (3)(c).
That means that even though one or more of the questions set out in cl 1(a), (b), (d) and (g) need not necessarily be answered in the affirmative, or there might be a condition which could reasonably be imposed, nonetheless there might be no responsible person willing to enter into the undertaking referred to.
It seems to me that if either one of the conditions described, the ones in cl 2(2)(a) and the ones in cl 2(2)(b), are met, the matter then falls to be dealt with as an ordinary bail application. That is to say the right referred to is dissolved and the child's bail application falls to be determined in the ordinary way, not that bail must be refused in such a circumstance.
The position is undoubtedly a complex one. It is not entirely evident to me why it needs to be that complex. However, it is quite clear from Milenkovski that I must approach the matter with respect to sch 1 pt C cl 2, as to which her Honour does not spend any significant time in Milenkovski, in that way.
I should not leave cl 2 without noting, as counsel for the State acknowledged, that it follows cl 2 could be seen to reflect the reference in Young Offenders Act 1994 (WA), s 7, general principles of juvenile justice, paragraph (h). These are the general principles to be observed in performing functions under the Young Offenders Act. But they are entitled - and this was certainly common ground between the parties - to respect outside that specific context, at least to the extent they are reflected in cl 2 pt C sch 1 of the Bail Act. The principle in (h) is that detaining a young person in custody, whether or before or after the person is found to have committed the offence, should only be used as a last resort and, if required, only to be for as short a time as is necessary.
In that regard, I note that the applicant has been in custody in respect of the present charge for something in the order of 100 days, a substantial period of time. It seems to me that is relevant, if not directly under cl 2, then as another relevant factor which the opening words to cl 1 allow the court to bear in mind.

Considerations in this case

With that lengthy set of preliminaries, I then turn to the considerations relevant in this case. I begin with the consideration in cl 1(a)(i), whether if the accused is not kept in custody he might fail to appear. In respect of that question I turn to cl 3, which is matter which I am directed to have regard to in relation to whether an accused may do any of the things mentioned in cl 1(a). I note that cl 1(a) talks in the language of possibility, as Milenkovski emphasises, not probability, let alone certainty.
The nature of the offending here is set out in the statement of material facts. It involved the setting of a fire in a fast-food restaurant in the central business district at about 6.10 pm on a Friday evening when the restaurant was approaching peak usage, and when the restaurant had to be evacuated before fire and rescue services personnel were able to suppress the fire in question. Heat and smoke damage was estimated to be $20,000.
The offence seems to me to be one of some significant seriousness. The applicant, as I have noted, also faces other charges, although not in this court. I have described those other charges. In respect of the nature and seriousness of the charges the applicant faces I note that I am, under cl 3, directed to consider the probable method of dealing with the accused for it or them if he is convicted.
It seems to me that, notwithstanding the applicant's youth, if convicted he faces a substantial possibility of a sentence of imprisonment, although not clearly one to be immediately served. This of course is entirely in the absence of the kinds of submissions and evidence that would be developed, following what is an entirely hypothetical conviction. I do have to note, however, that, in respect of any mitigation that the applicant might derive for his youth, he has a record of convictions, all as a juvenile, which include a number of unlawful damage offences contrary to Code s 445, and most recently two criminal damage convictions contrary to s 444B, not, I note, damage by fire. I also must note no custodial term has been imposed on him to this point.
However, these matters are relevant to a possible failure to appear by indicating the seriousness of the penalty the applicant faces if convicted.
I should further add in light of the language of cl 3(a) that I do not have information as to the circumstances of the other offending such that I would be able to perform anything like the same analysis with respect to them.
I further note that cl 3(b) directs my attention to the applicant's character. I have already referred to his previous convictions, antecedents (other behaviours, in other words), associations (as to which I have no material), home environment (with respect to which I have no information), background, place of residence and financial position. With respect to his financial position I was told that Centrelink payments have recently been renewed, and he is in a position to maintain himself, provided at least he was provided with a place to stay.
It seems to me that cl 3(b) in its reference to place of residence takes account of where an applicant for bail might be expected to live if he were on bail, because it seems to me cl 3(b) is directed to expected behaviours that a person on bail would exhibit having regard to factors of that kind.
So far as a place where he might stay while he was on bail is concerned, my attention was drawn to the residence of a Ms H. Ms H is a friend of the applicant's mother and a person the applicant has known since being a very young child. The applicant, I was told - and there is nothing to contradict this - has very much looked up to Ms H. I was told of an incident some few years ago when the applicant was in a hostel in which he visited this person. This person, Ms H, is the person with respect to whom additional information was sought over the adjournment, as I have indicated, by both State and defence.
Ms H has a place of residence that she has had for some time. Although there was some suggestion with respect to the applicant that his own place of residence had changed over a relatively short period, as indicated by that residence for the purposes of his bail undertaking, it does not seem to me that that has a large bearing on my decision whether or not to grant bail. This is because I am not told where that information was derived from, and therefore it is possible it was simply a correction, and because it is not proposed that he reside in those places.
Ms H it was indicated to me was a person in respect of whom there is a criminal record, both as a juvenile and as an adult. However, her last offence as a juvenile too long ago to be of significance to me, being in 1991, and her first offending subsequently was in 2000. There are four offences of receiving, two offences of fraud, and one of trespass, over the period 2000 to 2007.
There is no more recent offending than that, although two additional matters were drawn to my attention by the State. The first is that Ms H has been noted by police as a person of interest in relation to stealing offences in 2010 as well as street prostitution in 2007. But no charges have been laid arising out of that.
Further, it was drawn to my attention that there have been incidents of a domestic violence character associated with the place of residence of Ms H, some significant number of these, although the most recent was 2009. Again, I note that no charges appear to have arisen out of them.
I appreciate that this would indicate that Ms H has no unblemished record to offer as the person with whom the applicant would be living. It seems to me that in light of what I was told about the influence Ms H has over the applicant, and the conversations that counsel for the applicant has had with Ms H about the responsibilities that she would be undertaking by providing him with a residence and in providing the undertaking referred to in cl 3(c), were she to be called upon to do so, it has been shown that the place of residence should not be seen to tend against the grant of bail. Indeed, it may be relevant to conditions that could be imposed to address any concerns that I was left with in relation to cl 1(a). As well, Ms H could qualify as a responsible person for the purpose of an undertaking in cl 3(c). I will return to the conditions and cl 3 in due course.
The overall conclusion that I have drawn with respect to cl 1(a)(i), to the extent that I might possibly conclude it is against the grant of bail, depend upon, thus far at least, the nature and seriousness of the offence. However, there are further matters.
The further matters are in cl 3(c) and cl 3(d). Clause 3(c) concerns the history of any previous grants of bail to the applicant. That history I have previously rehearsed in respect of the criminal damage by fire charges, being the charge in the Children's Court and the charge now as it became in the District Court and before this court, as well as the indication from the applicant's own criminal history, that the applicant has previously been convicted of a breach of bail undertaking offence. Reference in the criminal history is made to s 51(1). Section 51(1) is the offence of without reasonable cause failing to comply with the requirement of his bail undertaking mentioned in s 28(2)(a). Section 28(2)(a) refers to the undertaking to appear at the time to which the bail undertaking relates. It seems to me that - although I do not have any other information than that, and further, that breach occurred some years ago on 23 July 2008 - that, when taken with the history of the grant of bail in this case, gives rise to concern.
Clause 3(d) is the remaining provision in cl 3 that I am directed to consider. This is the strength of the evidence against the applicant. The applicant has, as I understand it, already admitted that he set a fire in the toilet cubicle of the fast food restaurant. What will be in issue, as I understand it, in the trial, is the matter of whether he wilfully caused damage by fire. It is difficult to work out the strength of the case against him which would necessarily, at least on what little I have at the moment, be regarded as circumstantial. However, it is a not insubstantial case. I am prepared to assess the strength as greater than moderate.
My overall conclusion then has to be drawn from all of the considerations that I have described. On those considerations, in my view, the question in cl 1(a)(i) of pt C sch 1, whether if the accused is not kept in custody he may fail to appear in court in accordance with his bail undertaking, must be answered in the affirmative to the stronger standard that I have described.
This strictly makes it unnecessary for me to consider 1(a)(ii), commit an offence. It seems to me that in relation to that there is also a strong case to be made, invoking the same considerations in cl 3, having regard to the matters of the criminal history and the alleged - and I remind myself, alleged - offences committed while on bail previously in relation to the present matter. That is, an answer must be given in the affirmative, in respect of whether if the accused is not kept in custody he may - and again I stress may - commit an offence.
Having reached that conclusion, that directs my attention to subcl (2)(a)(ii). Is it my opinion that there is no condition which I could reasonably impose under pt D which would satisfy the relevant provision of cl 1(e)?
It is in relation to that that I must return to Ms H. In relation to Ms H, and a residential condition imposed on the applicant that would have the applicant live at her home, which would include a condition of a curfew kind that he not leave the home between the hours of 7 pm in the evening and 7 am in the morning, the condition that seems to me to be appropriate, having regard to his need to consult with his legal representative in relation to the trial which is imminent, I cannot attain the opinion that would remove from the applicant his right to be granted bail.
I say that not only because of the considerations as to Ms H that I previously referred to but also the fact that Ms H is the parent of, as it was described to me, a 13‑year‑old and a 19‑year‑old child. The elder child is in year 12 under an athletic scholarship at a school at which he is a boarder but in respect of whom responsible conduct by Ms H could be reasonably expected, responsible conduct from which at the same time the applicant would benefit. By responsible conduct I mean access in the evening to her elder son which would also mean Ms H could properly be expected to ensure that the applicant respected the curfew.
The matter of the condition in cl 2(2)(a)(ii) therefore means that the right to bail referred to in subcl (2) means that the right to bail referred to in subcl (2) subsists.
But it is still necessary for me to consider whether the right is removed under (b), that there is no responsible person willing to enter into an undertaking of the kind described in subcl (3)(c). That is to say, (a) might not cause the right to fail, but (b) might.
In respect of (b) it seems to me that the qualifications that I have referred to for Ms H would establish that she is a responsible person. I have further been told that she is willing to enter into an undertaking of the kind described in subcl (3)(c). Accordingly, I am not able to arrive at the opinion referred to that would, in respect of (b), remove the right in subcl (2).
It follows from these lengthy reasons that the right of the applicant to bail referred to in the Bail Act sch 1, pt C, cl 2(2) has determinative effect in this case, subject to the condition referred in subcl (3)(c). That is to say, the (or a) responsible person must undertake in writing in the approved form to ensure that the child complies with any requirement of his bail undertaking mentioned in s 28(2)(a), (b), (c) and (d). I have mentioned the conditions or the requirements in the bail undertaking that I would impose: the requirement to reside at the residence of Ms H and subjection to a curfew, to which I would add the further condition that the applicant report twice per week to the officer in charge of the nearest 24‑hour police station, the days to be worked out with counsel shortly.
That means that either Ms H signs or provides the undertaking or some other person who meets the definition of responsible person does so. It follows from my reasons that Ms H is a person in respect of whom I am satisfied she is a responsible person. But if she does not provide the undertaking, someone who satisfies that definition must provide an undertaking, and the person who must be satisfied as to that is the person identified in cl 2(1). It follows that, subject to the applicant providing a bail undertaking where the conditions are noted that I have referred to, and subject to a responsible person providing the undertaking in subcl (3)(c), the applicant would be entitled to be released from custody on bail. This is provided that, and only when, he is in a position to take advantage of that bail, because he presently is in custody on other charges.
In respect of his custody on those other charges, I should note this: I have already said that the applicant in relation to bail on those other charges is required to meet, at least in respect of one of those charges, a different kind of standard from the one to which he is accountable in this case. Clause 2 is expressed to be subject to this standard: see cl 2(3)(a). The standard is cl 3A, and cl 3A sets two tests with respect to which a judicial officer must be satisfied. They are the ones appearing in cl 3A(1)(c) and (d), in particular, and most notably, (c), exceptional reasons. In respect of cl 3A(1)(c), I note what the Court of Appeal said in Milenkovski with respect to that provision.
Therefore it cannot be said that the determination that I have made as to bail has any necessary determinative effect as to the making out of a cl 3A(1)(c) case. Whether or not there are matters that I have addressed which might also be seen by a judicial officer as exceptional reasons is nothing that I am required to address, and I do not address.