HA (a pseudonym) v The Queen

Case [2021] VSCA 64


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0019

HA (a pseudonym)[1] Appellant
v
THE QUEEN Respondent

[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.

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JUDGES: MAXWELL P and KAYE JA
WHERE HELD: MELBOURNE
DATE OF HEARING: 10 March 2021
DATE OF ORDERS: 10 March 2021
DATE OF REASONS: 19 March 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 64
JUDGMENT APPEALED FROM: [2021] VSC 96 (Tinney J)

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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:

  1. 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  On the same day, an application for bail on his behalf was refused by the Children’s Court, and his bail was revoked in respect of three other groups of charges on which he was then on bail.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.

  1. 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.

    [2]Bail Act1977, s 4A (the ‘Act’).

  1. 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]

    [3]Re HA [2021] VSC 96 (the ‘Ruling’).

  1. 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…

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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.

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