R v ADC - [2021] SASC 93

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v ADC
[2021] SASC 93
Reasons for Ruling of the Honourable Justice Nicholson
30 July 2021
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of refusal to grant bail.
Held: bail granted with conditions.
Young Offenders Act 1993 (SA) ss 3, 23; Bail Act 1985 (SA) s 10, referred to.

R v ADC
[2021] SASC 93
Criminal: Application

NICHOLSON J: This is an application to review the refusal by a District Court Judge on 1 July 2021 to grant bail to AC. AC is 13 years and eight months of age. On 8 July 2020, when he was approximately 12 years and eight months of age, he was arrested and charged with cause death by dangerous driving and cause harm by dangerous driving. Since then he has spent various periods on remand on bail and in youth detention. On 4 June 2021, bail was revoked and AC has been in youth detention since then.
On 16 July 2021, the matter came before me on an application to again grant bail. I heard lengthy submissions and reserved my decision to a date last week. However, a period of Covid-19 related lockdown intervened and I adjourned the date for ruling until today. As a consequence, AC has spent some eight weeks in detention since the date his bail was last revoked. Prior to that he had spent periods totalling in the order of three months in detention on remand.
AC has elected for the cause death and cause harm charges to be tried before a jury in the District Court. It is for this reason that the District Court is now the initial bail authority with respect to these two charges. As a further consequence, it is unlikely that AC will stand trial before May next year, and will spent a further nine months or more in detention unless bail were to be granted.
AC is also charged with eight counts of failing to comply with bail alleged to have been committed in March and June 2021 and the offences of property damage and illegal use of a motor vehicle alleged to have been committed in April 2020. The latter two allegations concern events different from those underlying the cause death and cause harm by dangerous driving charges.
An immediate consideration that arises for a bail court is that in order to prove its case, the prosecution will need to establish: the act of driving that caused death and harm; that this act constituted driving dangerously; and that the presumption of doli incapax with respect to this act and this (then) 12 year old child who has a significant cognitive impairment is rebutted beyond reasonable doubt. The last assessment, undertaken in March 2019 when AC was 11 years old, indicated that across all assessed areas of cognition and language he consistently fell within the age equivalent range of six to eight years. A further consideration is that, even if AC were to be convicted and bearing in mind AC’s personal circumstances, the passing of a sentence of detention, particularly given that more than five months, in total, already has been spent in detention on remand, would still be an open question. Indeed, if bail were not to be granted AC will spend a total of some 14 months in detention before receiving any sentence.
I have considered the materials referred to in the affidavits filed by the prosecution and on behalf of AC for this review. I have considered the materials that were before the District Court Judge, together with the detailed reasons given by that Judge for refusing bail on 1 July 2021, and the transcript of submissions before a Judge of this Court who, on an earlier review, granted bail with a curfew and electronic monitoring and other conditions on 14 May 2021. I have been particularly assisted by a very comprehensive Bail Remand Youth Justice Report dated 28 June 2021 prepared by Wendy Arden, a Youth Justice Case Manager and Senior Aboriginal Family Practitioner, Community Youth Justice and an addendum report by Ms Arden dated 15 July 2021. In addition, after reserving my decision I received on 29 July 2021, and have found very helpful, emails from both parties making submissions as to possible conditions of bail and a second affidavit affirmed by AC’s counsel that day deposing to recent discussions with and views held by various support persons. This morning I received another email from AC’s counsel advising that Ms Arden did not support the conditions as proposed by AC’s counsel.
I will not summarise the extensive history of AC’s interactions with the youth justice system which commenced when he was 11 years old, as set out in the materials before me. AC is alleged to have engaged in a number of anti-social activities over the years which, if proved and subject to doli incapax considerations, would constitute criminal offences. He has been granted bail on numerous occasions over the years; simple bail, electronic monitoring without or with a curfew and electronic monitoring home detention bail. The number of times he has failed to comply with conditions of bail and been charged with breach of bail is quite extraordinary. From time to time, but not always, he has been resistant to supervision and complying with his supervisor’s instructions.
I am acutely conscious of AC’s very young age, his cognitive impairments and other development and upbringing difficulties. He is one of a number of brothers all of whom have been removed from their mother and placed in the care of the Minister. I am conscious of the philosophy behind and proper approach to be taken with respect to young offenders according to the youth justice legislation, in particular sections 3 and 23 of the Young Offenders Act 1993 (SA). I take the view that this is not a case falling within subsection 3(4) of that Act.
AC’s most recent difficulties in complying with his conditions of bail which led to its revocation in June occurred in the context of his placement alone in a supervised house in the southern suburbs. He was very lonely and experienced bullying at school. As it happens, he has also experienced bullying at the detention centre during the current period there on remand. AC has older responsible cousins and a friend in the northern suburbs. His attempts to visit and spend time with them contributed to his failure to observe the curfew and other conditions.
A new placement has been found; a house in the northern suburbs where two brothers, 13 and 16, presently live. The 16 year old appears by all accounts, to be a very good role model and AC would like to spend time with him. AC has also expressed a desire to attend a particular school in the northern suburbs where two teachers whom he has come to know at the detention centre work. Whether this can be arranged or whether some other school in the area might be more appropriate is still to be resolved. The house in question will have adult supervision 24 hours a day. Both the former AFSS[1] supervisory team and the proposed new AFSS supervisory team are very supportive of AC being bailed to the new environment.
[1] Aboriginal Family Support Services.
AC is entitled to the presumption of bail, and that presumption carries particular force where a child, particularly one as young as 13, is concerned. The various matters identified in section 10 of the Bail Act 1985 (SA) fall to be considered. However, whilst there are a number of reasons why that presumption might be rebutted and bail refused, the primary ones are: to mitigate or eliminate the risk that an accused will not answer bail and appear for trial; the risk that an accused will fail to comply with conditions of bail or commit offences whilst on bail; and the extent and nature of any risk that an accused, when released, might pose for the public. I do not have a particular concern with respect to the first risk. Whilst the second is a matter of concern given AC’s history in this respect, there is no suggestion that he has offended (apart from failing to comply with bail conditions) since being charged with the dangerous driving offences. Prior to that, it does not appear that he had caused harm of significance to anyone. He is, by all accounts, distraught over the death of his older brother and injuries to his younger brother. He appears to have a real understanding of the terrible consequences of his alleged behaviour. Hopefully this will operate as a deterrent with respect to any such behaviour in the future.
My real concern is as to the extent of any risk to the public that AC might pose given the very serious nature of the cause death and harm allegations. In order to assess this, the context of the alleged offending is important. This was not a case of AC stealing a car and then joyriding. Rather, the car was a very dilapidated vehicle owned by his 20 year old brother essentially used for joyriding and things such as burnouts in the relatively quiet dirt roads in scrubland outside Port Augusta. The older brother invited AC to drive the car and AC accepted. It was in these circumstances that the accident is alleged to have occurred. In such circumstances, AC would have believed (correctly) that he had his brother’s permission to drive and to drive in the way he did. If so, it was a terrible act of stupidity by both of them as a result of which the 20 year old lost his life and a younger brother was very badly injured. In these circumstances, if AC were to be released on bail with intensive supervision, he would post a less serious risk to the public than the offences with which he has been charged might at first blush suggest.
I have found the matter of whether bail should be granted at all, finely balanced. The prosecution quite properly submits that, other than in quite extreme circumstances, a 13 year old Indigenous youth with cognitive impairments should not be remanded in custody for any significant period of time, if at all. However, it opposes any form of bail other than home detention bail. The question of the form of any bail is itself a finely balanced one. I have received detailed submissions as to the pros and cons of home detention bail and of simple bail but with electronic monitoring with or without a curfew. The fundamental problem, as has been the case in the past, is that the stricter the conditions and the more demanding the required supervision, the more likely that AC will become frustrated and impulsively engage in behaviour that will breach those conditions. All such types of bail have been ordered in the past; each time with limited success at least insofar as compliance with the conditions was concerned. When AC came before me on an earlier occasion, in early 2019, it was essentially for this reason that I reduced his bail to a form of simple bail. That was not successful in the long term.
On balance, the presumption in favour of bail has not been rebutted. I propose to grant bail. I am conscious of the supervisory team’s preference for electronic monitoring bail with the team having the primary role in managing and monitoring AC’s conduct. This will give the team flexibility in supervision and hopefully reduce the opportunities for frustration and breach. I will in broad terms adopt the approach advocated by the AFSS and AC’s counsel in this respect.
In the first instance, I have adopted the approach, as submitted by AC’s counsel following discussions with the new AFSS team leader, Ms Ilana Armon, that to include a condition requiring AC to observe house rules or to comply with the team’s direction to attend school might be counterproductive, lead to multiple breaches, and undermine the team’s therapeutic role of providing trust and support and convert it into a policing role. Rather, the team is to contact Youth Justice if it has a concern such that a breach will arise if AC fails to observe consequential directions given by a Youth Justice officer.
However, I think AC needs to demonstrate to himself, to his carers and to the Court that he can be trusted in his new environment. I will call the matter back on within a relatively short period for a progress report as to AC’s responsiveness to the conditions I set today. If necessary, I will then give consideration to any application by either party to vary the conditions of bail so as to take account of any concerns that might emerge.
When reviewing progress, I will be particularly interested to understand the extent to which AC responds to the team’s “House Rules”, and his schooling progress. I will hear the parties on the appropriate length of the adjournment.
I order that AC be released on bail on the following conditions.
1.AC will not leave the State for any reason without lawful permission under the Bail Act 1985 (SA).
2.AC will not possess a firearm, ammunition or any part of a firearm.
3.AC will submit to tests (including testing without notice) for gunshot residue as may be reasonably required by the bail authority, or a person or class of persons or body specified by the bail authority.
4.AC will reside at [the nominated address].
5.AC will wear an electronic transmitter and abide by the rules of electronic monitoring.
6.AC will be subject to electronic monitoring at all times.
7.Information as to AC’s electronic monitoring and location may be disclosed by Youth Justice at any time to a support worker employed by AFSS.
8.AC will remain at [the nominated address] each night between the hours of 6.00pm and 6.00am unless absent in the company of a support worker employed by AFSS or a person approved by his support worker.
9.AC will be placed under the supervision of Youth Justice and obey their lawful directions, including any direction given at any time by an Officer of Youth Justice:
9.1to return to and/or remain at [the nominated address];
9.2to place himself in the company of a support worker employed by AFSS or a person approved by AFSS;
9.3not to attend a particular place or be with a particular person, as specified by an Officer of Youth Justice, for any period of time specified;
9.4when and where to go to school.
10.AC will report within 2 working days to an Officer of Youth Justice in person or by telephone on 1800 621 425.
11.AC will not consume alcohol or any drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage. AC will submit to drug and alcohol testing as directed by the Officer of Youth Justice assigned to supervise him and will sign all required forms and comply with the requirements of the testing procedures.