FT v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2024 0064
FT (A PSEUDONYM)[1]	Appellant
V
THE KING	Respondent

[1]A pseudonym has been used to protect the identity of the appellant and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005.

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JUDGES:	BEACH, McLEISH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2024
DATE OF JUDGMENT:	9 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 90
JUDGMENT APPEALED FROM:	[2024] VSC 158 (Elliott J)

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CRIMINAL LAW – Appeal – Bail application refused – Standard of appellate review in relation to bail decisions – House v The King error must be shown – Whether judge erred in consideration of remote hearsay evidence – No error established – Whether judge erred in finding the prosecution case strong – No error in assessment of prosecution case – Whether judge erred in finding immediate custodial sentence likely – No error in conclusion as to likely custodial sentence – Whether finding as to unacceptable risk not reasonably open – Finding of unacceptable risk reasonably open to judge – Appeal dismissed.

Bail Act 1977, ss 1B, 3AAA, 3B, 4AA, 4A, 4E, 5AAA, 8, 12; Charter of Human Rights and Responsibilities Act 2006, ss 17, 21, 32; Children, Youth and Families Act 2005, s 346.

Coal & AlliedOperationsPty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; House v The King (1936) 55 CLR 499; Nigro v Secretary to the Department of Justice (2013) 41 VR 359; Norbis v Norbis (1986) 161 CLR 513; Zayneh v The King [2023] VSCA 311, considered.

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Counsel
Appellant:		Mr MD Stanton with Mr D De Witt
Respondent:		Mr C Carr SC
Solicitors
Appellant:	Dotchin Tan
Respondent:	Victoria Police

BEACH JA
MCLEISH JA
NIALL JA:

Introduction

The appellant, who is 14 years of age, is charged with aggravated burglary, theft of a motor vehicle and failing to stop at the scene of an accident after a road accident. The charges relate to the alleged theft of a vehicle in Wonthaggi on 27 and 28 February 2024 and the subsequent use of that vehicle. As a result, on 28 February 2024, the appellant was arrested and remanded in custody.
At the time of the alleged offending, the appellant was on bail for several matters, including for charges of intentionally causing serious injury and recklessly engaging in conduct that places a person in danger of death. Those charges relate to events on 23 January 2024 when it is alleged that the appellant was a passenger in a stolen vehicle that struck and seriously injured two cyclists on Beach Road, Mentone.
On 5 March 2024, the appellant applied for bail in the Children’s Court in relation to his alleged offending on 27 and 28 February 2024. Bail was refused on 8 March 2024. On 12 March 2024, the appellant filed a notice of intention to apply for bail in the Trial Division of this Court. On 21 March 2024, the appellant was granted bail for one week, subject to strict conditions. The appellant breached those conditions of bail.
The appellant made an application for a further grant of bail and, on 28 March 2024, the judge refused that application on the basis that the appellant posed an unacceptable risk of endangering the safety or welfare of other persons if he were granted bail. The appellant was remanded in custody to appear before the Children’s Court on 17 April 2024.
The appellant now appeals[2] from the judge’s refusal of bail on four grounds:
Ground 1 – The learned judge erred in his consideration of remote hearsay relied upon by the prosecution.
Ground 2 – The learned judge erred in finding that the prosecution case was strong.
Ground 3 – The learned judge erred in finding that it was likely that the appellant would receive an immediate custodial sentence.
Ground 4 – The finding that the appellant was an unacceptable risk was not reasonably open in all of the circumstances, including in light of the appellant’s youth, particular vulnerability and available supports.
[2]The appeal was brought as of right pursuant to s 17(2) of the Supreme Court Act 1986: see Dale v DPP [2009] VSCA 212, [18]–[22]; Zayneh v The King [2023] VSCA 311, [40] (Walker, Taylor and Boyce JJA).
At the conclusion of the hearing, the Court dismissed the appeal. What follows are our reasons for making that order.

Factual background

Alleged offending the subject of the bail application

The following account is based on the prosecution case and comprises only allegations at this stage.
It is alleged that, between 11:00 pm on 27 February 2024 and 2:30 am on 28 February 2024, the appellant unlawfully entered through the rear door a residential address in Wonthaggi. He took the keys of a white 2015 Mazda, which was parked in the driveway, and stole the car. The victims were at home at the time.
At approximately 2:30 am on 28 February 2024, the appellant, with another person, allegedly attended a service station in the stolen Mazda and filled the stolen vehicle with fuel before leaving the service station without making any attempt at payment.
Later that morning, at approximately 7:50 am, the stolen Mazda collided with another car at an intersection on Elizebeth Street in Dalyston, causing significant damage to the other vehicle. The appellant and another person in the stolen Mazda are alleged to have driven away from the scene of the accident without stopping.
At approximately 8:06 am, Acting Sergeant Nathan Davis observed the stolen Mazda at an intersection in Wonthaggi and claims to have identified the appellant as the driver of the vehicle.
At approximately 8:30 am, the appellant allegedly attended the same service station that he attended earlier that morning and is again alleged to have filled the vehicle up with fuel before leaving the service station without paying.

Other outstanding charges

The appellant has no criminal history. However, at the time of the alleged offending, the appellant was on bail in respect of charges which arose out of events alleged to have occurred on 23 January 2024. On that date, the appellant is alleged to have been a passenger in a stolen vehicle that struck and seriously injured two cyclists on Beach Road in Mentone, along with four other co-accused. Part of the episode is recorded on a phone used by one or other of the co-accused. It is alleged by investigators that the appellant said words to the effect of ‘hit him, hit him, hit him’ before the incident in respect of which the appellant is charged. A police officer says that he recognises the appellant’s voice in the video. It is further alleged that the appellant said these words after the driver of the vehicle had already driven close to one cyclist and struck another cyclist.
The relevant charges in relation to the alleged events of 23 January 2024 were:
(a)reckless conduct placing a person in danger of death, contrary to s 22 of the Crimes Act 1958;
(b)causing serious injury intentionally, contrary to s 16 of the Crimes Act;
(c)failure to report to police a motor vehicle accident whereby a person was injured, contrary to s 61(1)(e) of the Road Safety Act 1986;
(d)theft of a motor vehicle, contrary to s 74 of the Crimes Act; and
(e)committing an indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977.[3]
[3]This offence has since been repealed.
On 12 February 2024, the appellant was granted bail in respect of these charges in the Children’s Court.
At the time of the alleged offending relevant to this appeal, the appellant was also on bail granted by police in respect of the following charges:
(a)theft committed on 7 October 2023, contrary to s 74 of the Crimes Act;
(b)theft of a motor vehicle committed on 7 January 2024, contrary to s 74 of the Crimes Act;
(c)destroying or damaging property committed on 7 January 2024, contrary to s 197 of the Crimes Act; and
(d)two charges of committing an indictable offence whilst on bail on 7 January 2024, contrary to s 30B of the Bail Act.
The appellant was also the subject of a summons in relation to the following charges:
(a)handling stolen goods on 3 July 2023, contrary to s 88 of the Crimes Act, and dealing with proceeds of crime on 3 July 2023, contrary to s 194 of the Crimes Act;[4] and
(b)theft committed on 25 November 2023, contrary to s 74 of the Crimes Act.
[4]The prosecution informed the judge that this matter would be withdrawn on the next court date as it accepted that it was unable to rebut the presumption of doli incapax.
The appellant was also the subject of a further summons in relation to the following charges:
(a)theft committed on 24 November 2023, contrary to s 74 of the Crimes Act;
(b)handling stolen goods between 24 and 27 November 2023, contrary to s 88 of the Crimes Act;
(c)interfering with a motor vehicle on 27 November 2023, contrary to s 70 of the Road Safety Act;
(d)theft of a motor vehicle committed on 27 November 2023, contrary to s 74 of the Crimes Act;
(e)three charges of obtaining property by deception on 28 November 2023, contrary to s 81 of the Crimes Act.

Appellant’s personal circumstances

As already noted, the appellant is 14 years old. He was removed by the State from his parents’ care when he was six years old and has since been consistently placed in foster care and/or residential care. His early childhood was characterised by trauma, exposure to violence and substance misuse.
In May 2023, following an altercation between the appellant and his foster mother, his foster parents formed the view that they could no longer control him and his increasingly aggressive behaviour. The appellant was subsequently placed in the custody of the Secretary to the Department of Families, Fairness and Housing (‘Department’) under a ‘care by Secretary order’ made in September 2023.[5] The appellant remains in the care of the Secretary.[6]
[5]Children, Youth and Families Act, s 289.
[6]Re FT [2024] VSC 158, [20] (‘Reasons’).
In June 2023, the appellant was placed in a residential care unit overseen by the Department and managed by a private care provider. Between 31 May 2023 and 27 February 2024, he was reported by case workers at the Department as a missing person on 46 occasions. On some occasions, absconding from his residential care facility was a breach of previous conditions of bail. He has also breached other conditions of bail, including conditions requiring him to attend school.[7]
[7]Ibid [21].
On 7 March 2024, the appellant’s mother visited the appellant and his brother in custody at the Melbourne Youth Justice Centre in Parkville. The appellant’s case manager, Samantha Osborne, claims that she was told by the appellant’s mother that, during that visit, the appellant and his brother made comments to their mother to the effect that, as soon as they were released from custody, they would continue to steal cars. Ms Osborne reported the alleged comments in turn to a police officer.[8] The judge observed that this evidence was second-hand or more remote hearsay. His Honour noted that counsel for the appellant indicated that the evidence was not challenged, although submitted that it should be given no weight as the circumstances in which it was alleged to have been said were unknown and there was ‘no way to clarify that evidence’.[9] The judge noted that Ms Osborne was available to be cross-examined by the appellant’s counsel but that the opportunity was not taken as there was no controversy as to whether her account accurately conveyed what she had been told by the appellant’s mother.
[8]Ibid.
[9]Ibid [22].
The appellant suffers from conditions including autism spectrum disorder, attention deficit hyperactivity disorder (‘ADHD’) and post-traumatic stress disorder. He has a National Disability Insurance Scheme plan and has been prescribed medication for his ADHD. His carers have reported that, when he absconds for several days at a time, he presents as dysregulated and ‘heightened’ for some time on his return. The appellant has reported to Youth Justice staff that, when he is not medicated, he feels like he is ‘bouncing off the walls’ and prefers being on medication.[10]

Report from Youth Justice

[10]Ibid [23].

The judge received a Youth Justice bail service report dated 4 March 2024 prepared by Sheena Smit, a court advice and response worker at Youth Justice. The judge also received an earlier report dated 9 February 2024, a progress report dated 16 February 2024 and an addendum to the most recent report dated 15 March 2024, which were prepared in support of the appellant’s initial application for bail.[11]
[11]Ibid [25].
As at 21 March 2024, Youth Justice assessed the appellant as a suitable candidate for supervised bail. He was previously subject to Youth Justice supervised bail prior to being remanded in custody on 28 February 2024. Smit noted the appellant’s poor attendance at school and that the appellant expressed a desire to attend more frequently if again released on bail.[12] The appellant also disclosed that he currently smoked cannabis approximately 4 days per week, some alcohol use and one instance of using methylamphetamine.[13] Youth Justice assessed that drug and alcohol interventions could occur as part of supervised bail.
[12]Ibid [27]–[28].
[13]Ibid [29].
The Youth Justice report set out a range of proposed services to address risks associated with the appellant being granted bail, including supervised bail meetings, sports training, flexible schooling and specialist appointments.[14] Youth Justice also proposed to refer the appellant to psycho-social programs as necessary.[15]
[14]Ibid [30].
[15]Ibid [31].
The addendum to the Youth Justice report noted that the appellant had been involved in multiple incidents between 8 and 11 March 2024 while he was on remand, predominantly relating to aggressive behaviour towards and spitting at unit staff.[16] The addendum also noted that concerns had been raised in relation to the appellant’s cognitive abilities.
[16]Ibid [33].
The report noted that, at the time of the alleged offending on 28 February 2024, the appellant had only been on supervised bail for approximately two weeks and that, as a result, he had not been provided with the opportunity to benefit fully from Youth Justice intervention and the structured bail plan.[17]
[17]Ibid [34].
The report recommended that conditions of bail be imposed requiring that the appellant attend and comply with all directives of the Youth Justice bail service, comply with a curfew between the hours of 8:00 pm and 6:00 am, and not associate with any co-offenders.[18]

Recent bail and breach of bail conditions

[18]Ibid [35].

As noted, the judge granted bail to the appellant for one week on strict conditions on 21 March 2024. The appellant breached the conditions of his bail by leaving his residence without approval at approximately 12:40 am on 27 March 2024.[19] He is alleged to have willingly entered another stolen vehicle and travelled in that vehicle in very dangerous circumstances (at speeds in excess of 150 kilometres per hour through the south-eastern suburbs of Melbourne). An alleged occupant of the vehicle was a co-accused specified in the conditions of bail as being a person with whom the appellant could not have any contact. The appellant was therefore in custody at the time of the hearing as to the further application for bail on 28 March 2024.
[19]Ibid [70].
The manager of the appellant’s residential care unit also provided a report detailing multiple instances of alleged non-compliance by the appellant with the conditions of bail, including the consumption of cannabis and failure to attend a boxing lesson.[20]
[20]Ibid [75].
The judge observed that the appellant had also breached his bail conditions by refusing to attend Court for the further bail application hearing on 28 March 2024 and only belatedly attending the hearing by videolink.[21]
[21]Ibid [76].
The appellant’s case manager gave evidence providing some context to the appellant’s breaches of his bail conditions. Youth Justice provided a further report detailing the appellant’s attendance at school on two occasions in the prior week and engagement with identified activities. Youth Justice recommended that, if the further bail application were granted, a condition be imposed that the appellant not access social media, since Youth Justice reported that the appellant had been encouraged to engage in the alleged offending on 27 March 2024 by peers via social media.[22]
[22]Ibid [77]–[80].

Relevant statutory provisions

As the appellant is a child, the Bail Act applied to his application for bail except insofar as it is inconsistent with s 346 of the Children, Youth and Families Act.[23]
[23]Children, Youth and Families Act, s 346(6).
Section 1B of the Bail Act sets out ‘guiding principles’ that the Parliament intends are to be considered in the interpretation and application of the Act, including the importance of maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.[24]
[24]Bail Act, ss 1B(1)(a), (b).
Section 4 of the Act provides that an accused person who is being held in custody in relation to an offence is entitled to be granted bail unless the relevant decision-maker is required to refuse bail by the Act.
As the appellant was charged with a Schedule 2 offence while on bail for another Schedule 2 offence,[25] a two-step test applied to the decision whether to grant bail.[26]
[25]Ibid sch 2, items 6, 22(b).
[26]Ibid s 4AA(2)(c)(i).
Under the first step, the judge was required to refuse bail unless satisfied that exceptional circumstances exist to justify the grant of bail.[27] To be ‘exceptional’, the circumstances relied on must take the case out of the normal and justify the grant of bail.[28] In considering whether there are ‘exceptional circumstances’, an applicant’s status as a child will weigh heavily in favour of establishing exceptional circumstances because children applying for bail are afforded a special status.[29]
[27]Ibid s 4A(1), (1A).
[28]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA).
[29]Re JO [2018] VSC 438, [14] (T Forrest J).
If the Court is satisfied that there are exceptional circumstances, it must then determine whether the applicant presents an unacceptable risk of the kind specified in s 4E(1) of the Bail Act. In assessing that risk, the Court must take into account whether the risk posed by the applicant may be mitigated by conditions of bail.[30] The Court must refuse bail if it is satisfied that there is an unacceptable risk of the kind specified in s 4E(1), notwithstanding that the exceptional circumstances test has been satisfied. The prosecution bears the burden of proving that the applicant poses an unacceptable risk.[31]
[30]Bail Act, s 4E(3)(b).
[31]Ibid s 4E(2).
In considering both whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the Court is required to take into account the surrounding circumstances which include, but are not limited to, the matters specified in s 3AAA(1) of the Bail Act.[32] Those matters include, relevantly:
[32]Ibid ss 4A(3), 4E(3)(a). Amendments to the Bail Act came into force on 25 March 2024 and applied to any application for bail made on or after 25 March 2024, regardless of when the alleged offence or offences the subject of the application were committed: Bail Act, s 34(22).
(aa)whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—
(i) that the accused would be sentenced to a term of imprisonment; and
(ii) if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iiia)was on remand for another offence; or
(iiib) was at large awaiting sentence for another offence; or
(iv)was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g) the accused’s personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused, including—
(i)being an Aboriginal person; or
(ii)being a child; or
(iii)experiencing any ill health, including mental illness; or
(iv)having a disability, including physical disability, intellectual disability and cognitive impairment;
…
(i) the availability of treatment or bail support services;
…
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k) the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…

There are further issues that the judge was required to take into account by reason of the appellant being a child, which are listed in s 3B(1) of the Bail Act:
(a) the child’s age, maturity and stage of development at the time of the alleged offence;
(b) the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort;
(c) the presumption at common law that a child who is 10 years of age or over but under 14 years of age cannot commit an offence;
(d) the need to preserve and strengthen the child’s relationships with—
(i)the child’s parents, guardian and carers; and
(ii)other significant persons in the child’s life;
(e) the importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community;
(f) the importance—
(i)of supporting the child to engage in education, or in training or work; and
(ii)of that engagement being subject only to minimal interruption or disturbance;
(g) the need to minimise the stigma to the child resulting from being remanded;
(h) the fact that time in custody has been shown to pose criminogenic and other risks for children, including—
(i) a risk that the child will become further involved in the criminal justice system; and
(ii) a risk of harm;
(i) the need to ensure that the conditions of bail—
(i) are no more onerous than is necessary; and
(ii) do not constitute unfair management of the child;
(j) the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort’s overrepresentation in the criminal justice system—
(i) Aboriginal children;
(ii) children involved in the child protection system;
(iii) children from culturally and linguistically diverse backgrounds;
(k) whether, if the child were found guilty of the offence charged, it is likely—
(i) that the child would be sentenced to a term of imprisonment; and
(ii) if so, that the time the child would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(l) any of the following issues that arise—
(i) any ill health the child experiences, including mental illness;
(ii) any disability the child has, including physical disability, intellectual disability, cognitive impairment and developmental delay;
(iii) the impact on the child, and on the child’s behaviour, of any experience of abuse, trauma, neglect, loss, family violence or child protection involvement, including removal from family or placement in out of home care;
(m) any other relevant factor or characteristic.
Several other provisions of the Bail Act applied by reason of the appellant being a child. Bail must not be refused in relation to a child on the sole ground that the child does not have any, or any adequate, accommodation.[33] In making its determination, the Court may have regard to any recommendation or information in a report provided by a bail support service.[34] If bail is refused, the Court must remand the child in custody to appear before a court at a later date which must not be for a period longer than 21 clear days.[35]
[33]Ibid s 3B(3).
[34]Ibid s 3B(2).
[35]Ibid s 12(4)(a).

The judge’s decision

While the judge was satisfied that exceptional circumstances existed, he concluded that the appellant posed an unacceptable risk of endangering the safety or welfare of others such that the application for a further grant of bail must be refused.[36]
[36]Reasons, [85].
Despite factors including the appellant’s age, vulnerabilities, personal circumstances, and lack of criminal history, the judge considered the nature and seriousness of the alleged offending to be ‘extremely concerning’.[37] His Honour observed that each time a child steals and drives a car, they are putting ‘everyone in the vicinity of that vehicle in grave danger of serious injury, if not death’ and that serious injuries had occurred in relation to some of the alleged offending.[38] The judge considered that, if the appellant was found guilty of some of the charged offences and to be without any sense of guilt or remorse, he could face a sentence involving incarceration for a ‘not insignificant’ period of time.[39]
[37]Ibid [86].
[38]Ibid.
[39]Ibid.
The judge considered that the refusal of bail could not properly be characterised as a form of preventative detention, notwithstanding the estimated period of delay of six to nine months before the matter proceeds to hearing.[40]
[40]Ibid [87].
The judge considered the prosecution to have a strong case on the evidence before the Court, which included that on more than one occasion the appellant was seen or filmed in or within the vicinity of the stolen vehicle in question on 28 February 2024.[41]
[41]Ibid [88].
Having regard to the appellant’s repeated non-compliance with conditions of earlier grants of bail, the judge considered it highly likely that the appellant would materially breach any conditions of bail ‘almost immediately’.[42] His Honour considered that bail support services provided on previous occasions had not prevented the appellant from breaching the conditions of his bail.[43]
[42]Ibid [90].
[43]Ibid [93].
Consequently, the judge refused the further application for bail.

The applicable standard for appellate review

The submissions

The appellant contends that, in light of the observations of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[44] the decision whether to refuse bail is evaluative but not discretionary, so that the applicable standard of review is the ‘correctness standard’ as applied in Warren v Coombes.[45] The appellant also argues that a broader scope of appellate review under s 17(2) of the Supreme Court Act in relation to bail decisions better accommodates rights under the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’), particularly the rights to liberty and the rights of children.[46]
[44][2023] HCA 32 (‘GLJ’).
[45](1979) 142 CLR 521, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
[46]Sections 17(2), 21(1).
The respondent submits that error of the House v The King[47] variety must be shown, on the basis of authority, the proper construction of the Bail Act (which suggests an assessment that does not produce one uniquely right answer) and the appropriateness of appellate restraint in relation to an interlocutory decision about a matter of practice and procedure.

Decision

[47](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ) (‘House v The King’).

For the reasons that follow, an appeal to this Court from an order refusing the grant of bail attracts the principles in House v The King. That is so for two reasons. First, properly characterised, the decision is discretionary because applying the Act to a given set of facts does not necessarily produce a unique, and therefore correct, legal outcome. Second, and regardless of the first point, the nature of the decision — as interlocutory and relating to a matter of practice and procedure — is such as to attract appellate restraint of the kind embodied in House v The King.
In GLJ, the High Court considered the standard of appellate review of an order of a court permanently staying proceedings on the ground that a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process. The Court concluded that the applicable standard for appellate review in that case was the ‘correctness standard’ identified in Warren v Coombes.[48] In reaching that conclusion, the Court considered that the power to permanently stay a proceeding on the ground that it is an abuse of process is an evaluative but not a discretionary decision. Explaining that conclusion, the plurality said:
The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a ‘discretion’ is ‘apt to create a legal category of indeterminate reference’, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.[49]
[48](1979) 142 CLR 521, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
[49]GLJ [2023] HCA 32, [15]–[16] (Kiefel CJ, Gageler and Jagot JJ) (citations omitted). See also at [95] (Steward J) and [161] (Gleeson J).
Whether the exercise of the power to grant bail involves a question that admits of only one legally permissible answer is to be determined by a process of statutory construction.[50] The relevant statutory provisions are set out above, but some particular features are pertinent. In considering whether it is satisfied that the risk posed by an accused is an unacceptable risk, the Court is required to take into account the circumstances in s 3AAA of the Act and also to consider whether there are any conditions of bail that may be imposed to mitigate that risk so that it is not unacceptable.[51] Further, in considering the release of an accused on bail, the Court is required to impose any condition that, in the Court’s opinion, will reduce the likelihood that the accused may, relevantly, endanger the safety or welfare of any other person.[52] Such conditions must be no more onerous than is required to reduce the likelihood that the accused may, relevantly, endanger the safety or welfare of other persons and must be reasonable having regard to the nature of the alleged offence and the accused’s circumstances.[53]
[50]Minister for Immigration and Border Protection vSZVFW (2018) 264 CLR 541, 557–8 [35]–[37], 561 [44] (Gageler J), 592 [151] (Edelman J); GLJ [2023] HCA 32, [91] (Steward J).
[51]Bail Act, s 4E(3)(b).
[52]Ibid s 5AAA(1).
[53]Ibid s 5AAA(2).
In deciding whether to grant bail, a judge is required to consider a broad range of potentially competing factors, including the nature of the risks, the surrounding circumstances, factors personal to the accused, as well as the potential conditions that might mitigate the relevant risks. Further, as noted, the judge must refuse bail if they are ‘satisfied that’ the applicant poses an unacceptable risk,[54] and must impose conditions that ‘in [their] opinion’ will reduce the likelihood that the accused may, relevantly, endanger the safety or welfare of other persons.[55] These features, when taken together, indicate a power that depends considerably on the particular evaluation of facts and circumstances undertaken by the decision-maker in whom the power is reposed.
[54]Ibid s 4E(1). This language is not, by itself, sufficient to characterise a decision as discretionary: cf Trustees of the Christian Brothers v DZY [2024] VSCA 73, [98].
[55]Bail Act, s 5AAA(1).
This Court considered a similar power in Nigro v Secretary to the Department of Justice.[56] In that case, an issue arose as to the standard of appellate review in relation to a decision to make a supervision order. The making of such an order relevantly depended on the judge’s finding that the person potentially the subject of a supervision order posed an ‘unacceptable risk’. The Court held that this question depended on an ‘assessment of what relative weight should be given to a series of potentially relevant considerations’, where ‘[n]o particular opinion as to such weighting can be uniquely right’.[57] The analysis in relation to unacceptable risk for the purposes of a bail decision is similar in this respect. As the respondent observed, this Court’s decision in Nigro relied, in part, on reasoning in this Court’s earlier decision of Mobilio v Balliotis.[58] A proposition for which that case stood — that the standard of appellate review for whether an injury was a ‘serious injury’ required demonstrating House v The King error — was recently overturned.[59] However, we do not think that this provides reason to doubt the correctness of the aspect of the Court’s analysis in Nigro to which we refer.
[56](2013) 41 VR 359 (Redlich, Osborn and Priest JJA); [2013] VSCA 213 (‘Nigro’).
[57]Ibid 370 [39].
[58][1998] 3 VR 833.
[59]Connelly v Transport Accident Commission [2024] VSCA 20, [40] (Beach, Niall JJA and J Forrest AJA).
Further, the appropriate range of conditions that might sufficiently mitigate the risk posed by the accused to justify a grant of bail is evidently a matter as to which there are a number of legitimate and reasonable answers. That conclusion is illustrated by the example proffered by the respondent: in a particular case, one judge might find that a condition requiring the accused to report to a police station every day will reduce the risk to an acceptable level, while another judge might find the risk to be sufficiently mitigated by a bail guarantee, and a third judge might find the same objective to be met by a combination of the two conditions. Moreover, the range of conditions that the judge can impose is defined inclusively so that it depends only on the relevant condition satisfying the requirements of s 5AAA. It is a consequence of this feature of the Act that it is wrong to regard the choice as binary — that is, to grant or to refuse to grant bail — without regard to the myriad conditions that might be imposed to address risk in a particular case.
The combination of these factors means that the power to grant bail is very different to the power to grant a permanent stay considered in GLJ. A closer analogy may be drawn to the power to make an order altering the interests of parties to a marriage, which the High Court considered in Norbis v Norbis, in that — as in that case — the judge’s decision ‘depends on the application of a very general standard’ that calls for ‘an overall assessment in the light of the [statutory considerations], each of which in turn calls for an assessment of circumstances’.[60]
[60]Norbis v Norbis (1986) 161 CLR 513, 518 (Mason and Deane JJ).
The fact that once the two principal questions have been resolved — namely whether there exist exceptional circumstances justifying the grant of bail, and the accused poses an unacceptable risk of the specified kind — will dictate the outcome is not inconsistent with the power being regarded as discretionary. The following passage from Coal & AlliedOperationsPty Ltd v Australian Industrial Relations Commission[61] makes that point:
‘Discretion’ is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result.” Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[62]
[61](2000) 203 CLR 194.
[62]Ibid 204–5 [19] (Gleeson CJ, Gaudron and Hayne JJ) (citations omitted).
We note that this Court recently said that the decision whether to grant bail should strictly be described as a duty to be exercised if a particular state of mind is reached, not as a discretion.[63] That matter was, however, not in issue in that case and the Court did not have the benefit of argument as we have. In any event, even if the ‘strict’ designation of the bail decision is thought to be in issue, the point is not important for present purposes. In that matter, the Court applied the House v The King test in determining an appeal from a decision to refuse bail.
[63]Zayneh v The King [2023] VSCA 311, [38]–[39] (Walker, Taylor and Boyce JJA) (‘Zayneh’).
It follows that the statutory power to grant bail does not involve an evaluation that produces only one right answer and, applying that approach, the decision is properly seen as discretionary.
There are other reasons that further justify appellate restraint in relation to the decision whether to grant bail, which relate to the nature of bail itself and in themselves support the application of the House v The King test. A decision to grant or refuse bail is an interlocutory decision about a matter of practice and procedure.[64] Further, it is not a final order and may be revoked at any time. For both of these reasons, this Court has shown appropriate restraint in reviewing decisions in relation to bail.[65]
[64]As to the necessity to exercise caution in appellate intervention in relation to matters of practice and procedure, see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176–177; Hogan v Australian Crime Commission (2010) 240 CLR 651, 665 [34].
[65]Zayneh [2023] VSCA 311, [40] (Walker, Taylor and Boyce JJA); Fernandez v DPP (2002) 5 VR 374, 386–90 [25]–[31] (Winneke P, with whom Charles, Batt, Buchanan and Vincent JJA agreed); [2002] VSCA 115; Barbaro v DPP (2009) 20 VR 717, 719–20 [10] (Maxwell P, Vincent and Kellam JJA); [2009] VSCA 26; Beljajev v DPP (Vic) (Supreme Court of Victoria Appeal Division, Young CJ, Crockett and Ashley JJ, 8 August 1991), 29–30.
Section 32 of the Charter provides no support for the appellant’s argument. Section 32 depends on the existence of a constructional choice.[66] It is not clear that there is any such choice available based on the terms of s 17(2) of the Supreme Court Act, in circumstances where it applies to a much broader range of decisions than bail decisions and the standard of appellate review is determined by the nature of the decision in question rather than the terms of s 17(2). In any event, as the respondent correctly observes, it is not clear that the appellant’s proposed construction would be more consistent with the relevant rights given that it would also broaden the scope for an unsuccessful informant or the Director of Public Prosecutions to appeal a decision to grant bail. Further, the appellant seeks to deploy the rights that attach to him as a minor to construe the nature of an appeal from a bail decision but, as a matter of construction, the nature of the appeal cannot depend on the age of the appellant.
[66]See Momcilovic v The Queen (2011) 245 CLR 1, 49–50 [50] (French CJ).
On the hearing of the appeal, the appellant sought to advance a slightly different version of this argument. He submitted that the right to liberty is one of the guiding principles of the Bail Act.[67] As a result, he argued, a broader standard of appellate review should apply where appellants’ liberty is at stake. However, this submission ignores the balance sought to be achieved by the Act between the right to liberty and the other guiding principles that underpin it, including maximising the safety of the community and persons affected by crime to the greatest extent possible.[68] Moreover, the appellant’s submission provides no basis as a matter of logic for concluding that the decision whether to grant bail is evaluative but not discretionary.
[67]Bail Act, s 1B(1)(b).
[68]Ibid s 1B(1)(a).

Finally, the appellant also relied at the hearing on the fact that the Bail Act requires the Court to take account of the fact that the remand of the child is a last resort.[69] The appellant sought to draw an analogy between the power to refuse bail (in relation to a child) and the power to grant a permanent stay to prevent an abuse of process considered in GLJ. In GLJ, the fact that the power was an ‘extreme step’ and a ‘measure of last resort’ was one factor that supported the plurality’s conclusion that it admitted of one uniquely right answer.[70] However, the fact that the power to refuse bail might be characterised as a power to be exercised as a last resort does not mean that there is only one correct legal answer. The concept of last resort is an important protective mechanism in bail decisions with respect to children, however it is a conclusion reached having exhausted the availability of suitable alternatives that meet the purposes of the Bail Act as it applies to children. It does not mean that either the two qualifying conditions or the ultimate conclusion admit of one legal answer. This feature in relation to children is not sufficient to outweigh the other statutory features that indicate that the power is discretionary. Further, for reasons already explained, the nature of an appeal cannot depend on the appellant’s age.
[69]Ibid s 3B(1)(b).
[70]GLJ [2023] HCA 32, [17] (Kiefel CJ, Gageler and Jagot JJ).
We turn then to the grounds, noting at the outset that their focus is on the finding made by the judge that the appellant would pose an unacceptable risk of endangering the safety or welfare of other persons if he were to be granted bail.

Ground 1: The submissions

By ground 1, the appellant contends that the judge erred in his consideration of the remote hearsay evidence of Ms Osborne relied on by the prosecution. As noted, that evidence was to the effect that the appellant’s mother told Ms Osborne that the appellant and his brother had said that they would continue to steal cars immediately after being released from custody, which representation Ms Osborne subsequently conveyed to a police officer.
The appellant argues that the evidence of Ms Osborne was remote hearsay as to which she was not cross-examined. While not putting in issue whether Ms Osborne’s evidence was accurate, the appellant does not concede that the appellant made the representations to his mother in the first place. The appellant submits that the judge’s reasons indicate that he afforded significant weight to Ms Osborne’s evidence and that he wrongly concluded that the evidence was probative of the truth of the assertions by the appellant’s mother, particularly as to the appellant’s alleged lack of remorse. The appellant submits that the mother’s hearsay account was the only evidence going to a lack of remorse, which the judge regarded as a significant factor.
The respondent submits that s 8(1)(aa) of the Bail Act expressly disapplies the rules of evidence on bail applications and that there was a sound foundation for the judge to consider Ms Osborne’s reportage to be credible or trustworthy,[71] as it was not disputed. Further, neither the appellant nor his solicitor gave evidence challenging that he had made the alleged comments. The respondent also submits that the dangers that ordinarily attend remote hearsay (i.e. multiple layers of unreliability) do not apply to Ms Osborne’s evidence because the appellant accepts that his mother made the representations and the representations were relayed promptly to Ms Osborne and, in turn, the police officer. In any event, the respondent submits that it would not have changed the outcome if the judge had put the evidence aside.
[71]Ibid s 8(1)(e).

Ground 1: Decision

The relevant evidence to which this ground is directed is contained in the informant’s report of Detective Senior Constable Liza Burrows, which was an exhibit to the affidavit of Nicholas La Mattina sworn on 19 March 2024. Mr La Mattina is a lawyer employed with Victoria Police and his affidavit was filed in opposition to the bail. In DSC Burrows’ report, which in conventional terms summarises the relevant allegations and antecedents of the appellant, she said, under the heading ‘New information’:
42.On Thursday 07 March 2024 the [appellant’s] mother [AT] visited both the [appellant] and his brother [name deleted] at Parkville Youth Justice Centre. [AT] was concerned about what her sons were saying and also their demeanour and lack of remorse, she then reported these concerns to their care worker [Ms Osborne].
43.On Friday 08 March 2024 care worker [Ms Osborne] contacted police, she stated that the following occurred during the visit between the [appellant] and his mother:
a) The [appellant] and his brother stated as soon as they get out, they will continue to steal cars;
b) They will walk out of court and steal a car straight away;
c) Both the [appellant] and his brother were laughing at the offending that took place on Beach Road when they struck and seriously injured cyclists (Informant HEYNE);
d) The [appellant] showed no remorse towards the victims of this incident.
As the judge noted, Ms Osborne gave evidence on the application and was not cross-examined on this report.
Although a bail decision-maker is not bound by the rules of evidence, they may receive and take into account any evidence that they consider credible or trustworthy in the circumstances.[72] It may be accepted that, standing alone, the evidence as to the appellant’s alleged representations was weak. However, that does not mean that the judge could not rely on it at all, and the judge plainly appreciated its limitations. Having earlier set out the evidence,[73] the judge returned to it somewhat obliquely when he observed:
Thus the intention of FT, as apparently stated to his mother while previously in custody, to use the opportunity of being on bail in the future to abscond and steal, and then illegally drive or travel in another vehicle, appears to have largely come to pass.[74]
[72]Bail Act, s 8(1)(aa), (e).
[73]Reasons, [22].
[74]Ibid [74].
The judge made that observation after setting out the evidence that showed that the appellant had breached the bail conditions imposed by the judge by leaving his residence at around 12:40 am on 27 March 2024 and allegedly entering a stolen car which was later observed travelling at high speed until police intercepted the vehicle. Although the judge referred to the hearsay evidence of the appellant’s mother, it is plain that it was not taken into account in any material way. There was a wealth of evidence to support the finding that the appellant had breached bail on numerous occasions, including only a few days after the judge had granted bail temporarily, and that there was a high risk of further offending. The reference to the hearsay account was no more than a passing remark and played no material role in the judge’s decision making. It is notable in this regard that the judge initially decided to grant bail, albeit for a short duration, even though the impugned evidence was before him at that time.
The judge also referred to the fact that the appellant was ‘apparently willing to boast about’ his alleged offending as corroborating other evidence of such offending and supporting his conclusion that the prosecution had a strong case on the evidence before the Court.[75] However, again, there was other evidence that the judge used to support that finding and, in any event, the judge acknowledged the limitations of the evidence by observing:
Although I accept the submission made on FT’s behalf about the inability to test the evidence of what is alleged to have been said by FT and his brother while in custody (see par 22 above), the uncontested evidence is before the court and is corroborated by the conduct of FT in allegedly repeatedly offending when released on bail (including at least most recently with alacrity).[76]
[75]Ibid [88].
[76]Ibid [88] n 46.
The judge was entitled to refer to the evidence: it was part of the matrix of facts and there was no error in him doing so. There is no prospect that the judge misused the evidence by giving it a weight that it did not deserve or to ground any findings that were not otherwise clearly open on the evidence. As to remorse, it is important to acknowledge that the judge was not engaged in sentencing the appellant and, at the stage of bail, issues of remorse are unlikely to be of significance because guilt has not been established. The judge was plainly concerned with the brazenness of the appellant’s ongoing attitude to bail and the risk that there was likely to be a repetition of him engaging in dangerous conduct in relation to the driving of cars. The judge was using remorse more in the sense of a lack of acknowledgement of responsibility and an absence of awareness of the dangers that the alleged conduct entailed. At its highest the appellant’s mother’s account was confirmatory and merely added to the weight of the evidence that showed the appellant to be a major risk of engaging in further dangerous behaviour if granted bail.

Ground 2: The submissions

By ground 2, the appellant argues that the judge erred in finding that the prosecution case was strong.
The appellant contends that the prosecution’s case could not properly be regarded as strong because it relies on the purported recognition of the appellant as the driver of the vehicle by a police officer who had previous dealings with the appellant, in circumstances where there are well-known problems with identification and recognition evidence. The appellant also objects to the judge’s consideration of the strength of the prosecution case in relation to the alleged offending on 23 January 2024 where the further bail application related to the alleged offending on 27 and 28 February 2024. The appellant argues that the assertion that he was the person who purportedly encouraged the first collision on 23 January 2024 faces obvious difficulties, in particular because of the prosecution’s reliance on voice recognition evidence.
The respondent submits that the case against the appellant can be fairly described as strong in circumstances where there is evidence that the appellant was driving the stolen car in the middle of the night within hours of it having been stolen, in the absence of any other credible explanation. The respondent also argues that the judge’s finding as to the strength of the prosecution case related to the alleged offending on 27 and 28 February 2024. In any event, there were no obvious difficulties with the evidence in relation to earlier alleged offending on 23 January 2024.

Ground 2: Decision

The issue for the judge posed by the unacceptable risk test was whether the prosecution had satisfied the judge that there is a risk that the appellant would, if released on bail, endanger the safety or welfare of any other person and that the risk is an unacceptable risk.[77] The judge correctly addressed himself to that question and resolved it adversely to the appellant.[78] As he was required to do, he took into account, among the surrounding circumstances, the strength of the prosecution case.[79]
[77]Bail Act, s 4E(1).
[78]Reasons, [85].
[79]Bail Act, s 3AAA(1)(b).
The question of risk is forward-looking and involves a predictive exercise often based on incomplete material. Self-evidently, one factor that will inform that assessment is the behaviour of the person in the past. There can be no doubt that the appellant faces charges that involve alleged conduct that presents a danger to the community. As the judge found, ‘[e]ach time a child steals and drives a car, that child is putting everyone in the vicinity of that vehicle in grave danger of serious injury, if not death’.[80]
[80]Ibid [86].
There was certainly strong evidence that the appellant had been involved in the theft of cars, and the driving of stolen cars at high speed. In our opinion, it was also open to find, as the judge did, that the prosecution case was strong. This finding was addressed to the alleged offending on 27 and 28 February 2024. As the respondent submitted, there is evidence that the appellant was in a car which had been stolen in the middle of the night a few hours earlier, and that he was again in, or driving, or in the vicinity of that vehicle on successive occasions over that night and into the following morning.
But in the overall circumstances the point is of little significance. Whether the prosecution will be able to prove to the criminal standard each of the elements of the relevant offences is, to some extent, beside the point. It may be that on one or more occasions when the appellant was in a stolen car the prosecution will not be able to prove he was the person who stole the car or was the driver. The more significant point is that on a number of occasions the evidence showed the appellant to be one of a group of young persons involved in stealing and driving cars in an extremely dangerous fashion and on two occasions this resulted in serious injury.
The submission that the prosecution may not be able to prove that it was the appellant who encouraged the driver of the car to hit the cyclist and that the appellant may have been one of a number of passengers in the vehicle does not take the appellant any distance in impugning the judge’s ultimate conclusion on risk.
Moreover, any assessment of the prospects of a prosecution case on a bail application will necessarily be provisional. On the current state of the evidence, the judge was entitled to proceed on the basis that the prosecution will be in a position to prove that it was the appellant’s voice on the recording. The judge’s assessment as to the prospects of the prosecution case succeeding was open to him.
We reject ground 2.

Ground 3: The submissions

By ground 3, the appellant contends that the judge erred in finding that it was likely that the appellant would receive an immediate custodial sentence.
The appellant argues that, as a 14-year-old boy with no prior convictions, particular vulnerabilities and significant trauma, he would be unlikely to receive a sentence of youth detention. General deterrence would be an irrelevant consideration in the sentencing exercise. Further, making preliminary findings about remorse was premature given the stage of the proceeding, and there was a real prospect that the appellant will be pressured to plead guilty in order to be released before the matter is finally determined.
The respondent submits that, given the appellant engaged in serious criminality while on bail, and he was unchastened, the judge’s finding as to a likely custodial sentence was accurate.

Ground 3: Decision

Predictions as to what an ultimate sentence disposition might be in the event an applicant for bail is later convicted is an uncertain exercise. It is even more uncertain when the applicant for bail is a child of 14 years of age. Despite that difficulty, the length of any prospective sentence and the length of remand form part of the surrounding circumstances that must be considered and the bail court must do its best to answer this question. The length of any potential sentence of imprisonment will often be an important factor in establishing whether or not there is a compelling reason or there are exceptional circumstances (depending on the charges) justifying bail. If the time on remand is likely to exceed any sentence, then the situation may well be seen as exceptional.
The relevance of any potential sentence to the assessment of unacceptable risk is perhaps more attenuated. A longer potential term of imprisonment might give some colour to the nature of the risk and perhaps to some extent inform the question whether the risk is unacceptable. Here, the risk posed by the appellant’s past conduct and — if repeated — future conduct was self-evident, troubling and as, as the judge observed, ‘demonstrated to a high degree of probability’.[81] In the context of a child offender, the expected length of imprisonment is unlikely to say a lot about the nature or extent of the risk of harm. For that reason, the judge’s observation that, if convicted, ‘it may be expected that he will face a sentence involving incarceration for a not insignificant period of time’[82] was not central to the particular issue of unacceptable risk the judge was confronting.
[81]Ibid [94].
[82]Ibid [86].
Further, we are not persuaded that the judge’s assessment was not open to him. A term of incarceration was a real prospect on the assumption that the appellant pleads not guilty and is convicted. The charges, particularly those relating to the incident on 23 January 2024, are serious and, even having regard to the appellant’s age and what would appear to be strong mitigatory grounds, may warrant a term of incarceration. It must be said that the judge’s conclusion as to the length of any term was circumspect, and rightly so; any sentencing discretion would fall to be exercised on the facts then known and with a child aged 14 those facts may well change in important, and favourable, respects. It suffices to say that we regard the judge’s assessment as open and, in any event, largely immaterial to the judge’s assessment of risk given the gravity of the risk and the likelihood of it eventuating if the appellant was granted bail.
Further, as a child the appellant’s bail is subject to regular judicial review. The decision of the judge or of this Court on the present appeal cannot foreclose proper consideration of future reviews of bail where there may be evidence of how the appellant is dealing with detention and the possible refinement or evolution of protective measures. The length of detention will also be easier to assess as the matter progresses.

Ground 4: The submissions

By ground 4, the appellant submits that the finding that the appellant posed an unacceptable risk was not reasonably open in all of the circumstances.
The appellant relies in particular on his special status as a 14-year-old child, his experience of trauma, cognitive impairment and developmental immaturity, particularity vulnerability while in custody, the existence of a meaningful alternative to remand, the weakness of the prosecution’s case, the real risk of the appellant having to serve a period of excessive remand, his absence of prior criminal history, and the criminogenic effect of time in custody, among other factors.
The respondent argues that it was an entirely sound exercise of discretion to refuse the application and remand the appellant in custody for 21 days, which period reflects the gravity of the decision to detain a child of the appellant’s age and allows for prompt reconsideration of the issue.

Ground 4: Decision

The evidence supported a finding that the appellant if released on bail posed a risk that he would endanger the safety or welfare of members of the community by committing an offence that has that effect or by any other means. He has shown an inability to resist absconding and the allure of driving in a stolen car with acquaintances appears to be compelling for the appellant. Significant resources were available in terms of bail support and case workers but their best endeavours have not been able to prevent the appellant from reoffending in a similar way.
It may be accepted that, depending on the circumstances, some risks of offending on bail, even a high risk, may not be unacceptable for the purposes of the Act. The calculus involves an assessment of the probability of the risk eventuating and the likely harm if it does. Here, both those integers weigh heavily against the appellant. Driving a car at high speeds, or being a passenger of a car and encouraging the driver to do so, gives rise to a high risk of collision and injury. In order to calibrate the risks it is not necessary to attempt an assessment of whether or not the appellant’s past non-compliance is defiant or, as we think may be more likely, is a product of his immaturity, vulnerability, difficult upbringing and other matters that he and those supporting him cannot at this stage of his development adequately address.

It was an important matter that Youth Justice and his support workers favoured the grant of supervised bail. It is also relevant that the appellant is under the care of the Secretary who has the resources and obligation to support the appellant. And it may be that with this support, the appellant will be in an improved position in the future on the 21-day reviews of his bail that the Act mandates. Regrettably, however, there is no sound basis to conclude that the protections that were in place at the time of the application were, to that point at least, adequately protective against the high risks posed by the appellant. Given the breaches of the 7-day bail granted by the judge, in the context of what had gone before, the conclusion as to unacceptable risk reached by the judge was well open to him, and we would have made the same decision ourselves.
We are unable to uphold this ground.
For these reasons, we dismissed the appeal.

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[2024] VSCA 90

9 May 2024