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FT v The King

FT v The King

Case [2024] VSCA 90 9 May 2024

Appeal

Jurisdiction

Legal Privilege

Admissibility of Evidence

Criminal Liability

Criminal Law

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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…

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 FT v The King

Details

AGLC: FT (a pseudonym) v The King [2024] VSCA 90
Case: [2024] VSCA 90
Decision Date: 9 May 2024

CaseChat Overview and Summary

The appellant, FT, sought leave to appeal against the refusal of an application for bail by the Court of Appeal. The refusal of bail was a result of the appellant's earlier application for bail being rejected by the County Court. The appellant, charged with serious criminal offences, argued that the judge had erred in considering certain hearsay evidence and in assessing the strength of the prosecution case and the likelihood of a custodial sentence. The Court of Appeal dismissed the appeal, finding that no error had been established in the judge's consideration of the evidence or in the assessment of the prosecution case and the likely custodial sentence. However, the Court of Appeal did find that the judge's conclusion that there was an unacceptable risk of reoffending was reasonably open on the evidence before the court.

The key legal issues before the Court of Appeal were whether the trial judge erred in considering certain hearsay evidence, whether the trial judge erred in finding that the prosecution case was strong and that an immediate custodial sentence was likely, and whether the trial judge's finding that there was an unacceptable risk of reoffending was reasonably open on the evidence before the court. The Court of Appeal found that the trial judge did not err in considering the hearsay evidence or in assessing the strength of the prosecution case and the likely custodial sentence. However, the Court of Appeal found that the trial judge's conclusion that there was an unacceptable risk of reoffending was reasonably open on the evidence before the court.

The Court of Appeal considered the relevant statutory provisions and case law, including Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission, House v The King, Nigro v Secretary to the Department of Justice, Norbis v Norbis, and Zayneh v The King. The Court of Appeal held that in order for an appeal against the refusal of bail to succeed, the appellant must demonstrate that the trial judge made an error of law or fact that was material to the decision to refuse bail. The Court of Appeal found that the trial judge did not err in considering the hearsay evidence or in assessing the strength of the prosecution case and the likely custodial sentence. However, the Court of Appeal found that the trial judge's conclusion that there was an unacceptable risk of reoffending was reasonably open on the evidence before the court.

The Court of Appeal dismissed the appeal and affirmed the decision of the County Court to refuse bail. The Court of Appeal held that the trial judge's consideration of the hearsay evidence and assessment of the prosecution case and the likely custodial sentence were not in error. However, the Court of Appeal found that the trial judge's conclusion that there was an unacceptable risk of reoffending was reasonably open on the evidence before the court. As such, the Court of Appeal found that the trial judge did not err in refusing bail and dismissed the appeal.

Orders