R v BH

Case [2024] NSWSC 1577 9 December 2024

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Supreme Court

New South Wales

Medium Neutral Citation: R v BH [2024] NSWSC 1577
Hearing dates: 9 December 2024
Date of orders: 9 December 2024
Decision date: 09 December 2024
Jurisdiction: Common Law
Before: Yehia J
Decision:
Bail granted.

Catchwords:
BAIL – Applicant 14 year old Aboriginal child – operation of s 22C of the Bail Act 2013 (NSW) – whether high degree of confidence requires certainty that the applicant will not reoffend – application of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to the bail proceedings – consideration of unacceptable risk – prosecution failed to establish that bail should be refused – conditional bail granted

Legislation Cited:
Bail Act 2013 (NSW), ss 5(1)(b), 16A, 17, 18(1), 19(1), 20A, 22C
Bail and Crimes Amendment Act 2024 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 6
Crimes (High Risk Offenders) Act 2006 (NSW), s 5B

Cases Cited:
R v Hamilton [2022] NSWSC 127
R v Lago (2014) 241 A Crim R 266; [2014] NSWSC 660
R v RB [2024] NSWSC 471
R v TW [2024] NSWSC 1504
Raad v R [2015] NSWSC 532
R v Tsintzas [2017] NSWCCA 172

Texts Cited:
Bail and Crimes Amendment Bill 2024 (NSW)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 March 2024
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 March 2024

Category: Principal judgment
Parties: BH (Applicant)
Rex (Respondent)
Representation:
Counsel:
Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2024/00446997
Publication restriction: Nil

ex tempore JUDGMENT

The applicant, BH, is a 14 year old Aboriginal child who is bail refused in relation to offences of break, enter and steal; steal motor vehicle; knowingly being carried in a stolen conveyance; and destroying property by fire. The proceedings are listed on 19 December 2024 in the Children’s Court at Moree for mention only. The applicant was bail refused on 1 November 2024 and has been in custody for a period of 39 days.
The applicant is the sixth of eight children. He grew up in Moree and although he has not lived with his mother for approximately four years, he has a loving relationship with her. His relationship with his father has been sporadic because his father has been in and out of custody for significant periods of time.
The applicant also has a loving and supportive relationship with his maternal grandmother and his aunt. He has previously resided with both of them. Prior to his current period of detention, the applicant resided primarily with his older sister. He was living with her for 12 months.
The applicant is subject to s 22C of the Bail Act2013 (NSW) introduced by the Bail and Crimes Amendment Act 2024 (NSW) which commenced on 3 April 2024. The young person was on bail for another relevant offence when he allegedly committed the current offences. The relevant offence for which he was subject to bail has been subsequently withdrawn and dismissed.
The young…

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 R v BH

Details

AGLC: R v BH [2024] NSWSC 1577
Case: [2024] NSWSC 1577
Decision Date: 09 December 2024

CaseChat Overview and Summary

In the case of R v BH, the defendant, a 14-year-old Aboriginal child, sought bail from the Supreme Court of New South Wales. The proceedings revolved around the interpretation and application of sections 22C and 6 of the Bail Act 2013 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW). The central legal issue before the court was whether a high degree of confidence that the applicant would not reoffend required certainty, and if so, whether the prosecution had established an unacceptable risk to warrant the refusal of bail. The court was also required to consider the application of section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to the bail proceedings.

The court considered that a high degree of confidence that the applicant would not reoffend did not necessarily require certainty. It was sufficient that the court was satisfied to a high degree that the applicant would not reoffend. The court noted that while the prosecution had a responsibility to establish an unacceptable risk, they had failed to do so. The court took into account the applicant's age, background, and prospects for rehabilitation. Ultimately, the court found that the prosecution had not provided sufficient evidence to warrant the refusal of bail. Instead, the court granted conditional bail, recognising the importance of providing the applicant with an opportunity for rehabilitation and reintegration into the community.

The court's decision underscores the importance of considering the unique circumstances of young and vulnerable applicants in bail proceedings. It highlights the need for the prosecution to provide robust evidence to establish an unacceptable risk. The court's approach reflects a balanced consideration of the rights of the applicant and the interests of the community. The final orders of the court were that conditional bail was granted to the applicant, subject to specific conditions designed to ensure the applicant's attendance at court and to mitigate any risk of reoffending.

Orders