[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
CRIMINAL LAW – Trial – Bail – Appeal from refusal of bail – Appellant facing multiple charges (burglary, criminal damage, unlawful assault, 67 charges of committing an indictable offence on bail) – Appellant 15 years old – Significant intellectual disability – Vulnerability in custody – Aboriginal heritage – Post-traumatic stress disorder – Crown concession that custodial sentence unlikely – Crown concession that exceptional circumstances existed justifying bail – Whether unacceptable risk of reoffending – Factors relevant to assessing whether risk unacceptable – Appeal allowed – Bail granted – Bail Act 1977, ss 3AAA, 3A, 3B, 4AA, 4A, 4E, Mokbel v Director of Public Prosecutions [No 3] [2002] VSC 393, Director of Public Prosecutions (Cth) v Barbaro (2009) 20 VR 717, Roberts v The Queen [2021] VSCA 28.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P J Smallwood
Kurnai Legal Practice
For the Respondent
Mr G Hughan
Ms A Hogan, Solicitor for Public Prosecutions
MAXWELL P KAYE JA:
The appellant, a 15 year old intellectually disabled child of Aboriginal heritage, was arrested on 8 January 2021 and charged with some 18 offences. On the same day, an application for bail on his behalf was refused by the Children’s Court, and his bail was revoked in respect of three other groups of charges on which he was then on bail. The appellant made a further unsuccessful application for bail to the Children’s Court on 20 January 2021.
On 11 February, the appellant applied to a judge of the Trial Division of the Court for bail. That application was heard on 26 February. As the appellant was charged with committing ‘Schedule 2 offences’ while on bail for such an offence, the judge was required to refuse bail unless the appellant demonstrated that exceptional circumstances existed that justified the grant of bail.[2] It was common ground, and the judge accepted, that such circumstances existed.
The next question was whether, as the prosecution submitted, the appellant posed an unacceptable risk of endangering the safety or welfare of the public, and of committing an offence, while on bail. His Honour was satisfied that there was an unacceptable risk and accordingly refused bail.[3]
The appellant appealed against that determination. Accepting that the bail decision was discretionary, and disavowing any complaint of specific error, he submitted that it was not reasonably open to the judge to…
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.
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AGLC
Ha (a pseudonym)[1] v The Queen [2021] VSCA 64
Case
[2021] VSCA 64
Decision Date
CaseChat Overview and Summary
The appellant, HA, sought leave to appeal against the refusal of bail by a single judge of the County Court of Victoria. The appellant was facing multiple charges, including burglary, criminal damage, unlawful assault, and 67 charges of committing an indictable offence while on bail. The appellant, aged 15, has a significant intellectual disability, is of Aboriginal heritage, and suffers from post-traumatic stress disorder. The Crown conceded that a custodial sentence was unlikely and that exceptional circumstances existed that justified the grant of bail.
The legal issue for the Court of Appeal was whether the County Court judge was correct to find that the risk of the appellant reoffending was unacceptable. The Court of Appeal was required to determine the factors relevant to assessing whether the risk of reoffending was unacceptable, given the exceptional circumstances and the appellant's vulnerability. The Court of Appeal held that the County Court judge erred in failing to properly consider the exceptional circumstances and the appellant's vulnerability when assessing the risk of reoffending. The Court of Appeal also held that the County Court judge erred in failing to properly consider the appellant's Aboriginal heritage and intellectual disability when assessing the risk of reoffending.
The Court of Appeal allowed the appeal and granted bail to the appellant. The Court of Appeal held that the County Court judge erred in failing to properly consider the exceptional circumstances and the appellant's vulnerability when assessing the risk of reoffending. The Court of Appeal also held that the County Court judge erred in failing to properly consider the appellant's Aboriginal heritage and intellectual disability when assessing the risk of reoffending. The Court of Appeal held that the appellant's Aboriginal heritage and intellectual disability were relevant factors to be considered when assessing the risk of reoffending. The Court of Appeal held that the appellant's vulnerability in custody was also a relevant factor to be considered when assessing the risk of reoffending. The Court of Appeal held that the Crown's concession that a custodial sentence was unlikely and that exceptional circumstances existed that justified the grant of bail were relevant factors to be considered when assessing the risk of reoffending. The Court of Appeal held that the County Court judge erred in failing to properly consider these factors when assessing the risk of reoffending. The Court of Appeal held that the appellant's risk of reoffending was not unacceptable, given the exceptional circumstances and the appellant's vulnerability. The Court of Appeal granted bail to the appellant.