DPP v SE

Case [2017] VSC 13 31 January 2017

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0194

DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2016
DATE OF JUDGMENT:	31 January 2017 (revised 28 February 2017)
CASE MAY BE CITED AS:	DPP v SE
MEDIUM NEUTRAL CITATION:	[2017] VSC 13

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CRIMINAL LAW – bail – human rights – application for bail by Aboriginal person with intellectual disability aged 17 years – procedure to be followed when court hears applications for bail by children – identifying suitable arrangements for child’s detention when at court and procedures for conduct of bail hearing having regard to child’s age – segregating applicant as child in detention when at court – avoiding intimidation, humiliation and distress and ensuring child’s effective participation in criminal process - assessing considerations applying to determination of applications for bail by Aboriginal persons – assessing considerations applying to determination of applications for bail by children – assessing possible conditions of bail when determining applications by Aboriginal persons and children – in such cases, adopting procedural accommodations to avoid multiple and intersectional discrimination - whether applicant had shown cause why detention was not justified – whether applicant represented unacceptable risk – relationship between those criteria and considerations governing determination of applications by Aboriginal persons and children – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 8(3), 17(2), 19(1) and (2), 23(1) and 25(3), Bail Act 1977 (Vic) ss 3A, 3B, 4(2)(d)(i), 4(4), 5(1)-(8), International Covenant on Civil and Political Rights arts 10(2)(b), 14(4) and 24(1), Convention on the Rights of the Child arts 37(c), 40(1) and (2).

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APPEARANCES:	Counsel	Solicitors
For the prosecution	Mr N Watt	Victoria Police Legal Group
For the defence	Mr S Moglia	Dotchin Tan Lawyers

HIS HONOUR:

SE[1] is an Aboriginal person with an intellectual disability aged 17 years who made an application in this court for bail under the Bail Act 1977 (Vic) on 16 December 2016. The application raised issues about the procedure to be adopted when this court hears applications for bail by children,[2] determining applications for bail by Aboriginal persons, determining applications for bail by children and assessing the conditions upon which bail may be granted to children, having regards to human rights and recent amendments to that Act. After considering those and other issues, I issued a procedural ruling and granted conditional bail. These are my reasons for so doing.
[1]In view of the applicant’s age, this judgment has been anonymised and is expressed in gender neutral language. ‘SE’ is a pseudonym.
[2]Section 3 of the Bail Act defines ‘child’ to have the same meaning as in the Children, Youth and Families Act 2005 (Vic) and s 3(1) of that latter Act defines a child to be a person under the age of 18 years.

Circumstances of application

SE was arrested on 14 December 2016 in relation to alleged offending occurring between 12 and 14 December 2016 and then…

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 DPP v SE

Details

AGLC: DPP v SE [2017] VSC 13
Case: [2017] VSC 13
Decision Date: 31 January 2017 (revised 28 February 2017)

CaseChat Overview and Summary

The matter before the Supreme Court of Victoria involved the Director of Public Prosecutions and SE, a 17-year-old Aboriginal person with an intellectual disability who was detained. SE applied for bail under the Bail Act 1977, which was opposed by the DPP. The court was required to determine the appropriate procedure to follow in bail hearings involving children, particularly those with additional vulnerabilities such as being Aboriginal and having an intellectual disability. The central legal issues included identifying suitable arrangements for SE’s detention when at court, ensuring the conduct of the bail hearing adhered to SE’s age and condition, and avoiding any intimidation, humiliation, or distress to SE during the process. Additionally, the court had to consider the specific considerations applicable to bail applications by Aboriginal persons and children, and assess any proposed conditions of bail.

The court found that the appropriate procedure involved segregating SE as a child in detention when at court, ensuring SE’s effective participation in the criminal process, and adopting procedural accommodations to avoid multiple and intersectional discrimination. The court concluded that SE had not demonstrated sufficient cause why detention was not justified, and SE represented an unacceptable risk. The court considered the relationship between these criteria and the considerations governing bail applications by Aboriginal persons and children. Relevant statutory provisions and international conventions were cited, including the Charter of Human Rights and Responsibilities Act 2006, the Bail Act 1977, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. The court’s reasoning was grounded in ensuring SE's human rights were protected while balancing the need for public safety.

In light of the considerations, the court upheld the decision to deny bail to SE. The court ordered that SE remain in detention until further order. The decision emphasised the importance of procedural fairness and the protection of human rights in bail hearings involving vulnerable individuals.

Orders