R v GSR - [2023] QChC 36

CHILDRENS COURT OF QUEENSLAND

CITATION:	R v GSR [2023] QChC 36
PARTIES:	THE KING v GSR (defendant/applicant)
FILE NO:	25 and 26 of 2023
DIVISION:	Childrens Court of Queensland
PROCEEDING:	Bail Application
ORIGINATING COURT:	Childrens Court of Queensland
DELIVERED ON:	20 December 2023
DELIVERED AT:	Maroochydore
HEARING DATE:	14 and 15 December 2023
JUDGE:	Long SC, DCJ
ORDER:	Adjourn the further consideration of this application until 9:00am on 23 January 2024, pending the provision of any further information including, but not limited to, the result of the NDIS application and engagement of any additional supports and interventions as available to the applicant in the community. Direct that the parties are to file and serve any further materials to be relied upon, by 3:00pm on 22 January 2024.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – APPLICATION FOR BAIL – Where the defendant/applicant applies for bail on various charges before the Childrens Court – Whether the defendant/applicant poses an unacceptable risk of the relevant kind – Whether it is not practicable to adequately mitigate that risk by imposing particular conditions of release on bail – Whether the respondent has evidence to rebut the presumption in s 29(2) of the Criminal Code that the defendant/applicant is not criminally responsible for the offending – Whether the defendant/applicant is at risk of being held in detention beyond a period which is appropriate for the offending.
LEGISLATION:	Criminal Code Act 1899 (Qld) s 29(2) Youth Justice Act 1992 (Qld) ss 48AA, 48AAA, 48AF, 59, 208 and 219
CASES:	BDO v The Queen (2023) 97 ALJR 377 RP v The Queen (2016) 259 CLR 641
COUNSEL:	L Bull for the Applicant/Defendant S Masoumi for the Respondent/Crown A Benfer for the Chief Executive
SOLICITORS:	ATSILS for the Applicant/Defendant Office of the Director of Public Prosecutions for the Respondent/Crown Youth Justice for the Chief Executive

Introduction

The applicant applies for bail in relation to charges which are both indicted in the Childrens Court of Queensland (Judge’s Jurisdiction) and also in the Childrens Court of Queensland (Magistrate’s Jurisdiction), at Maroochydore. This Court is empowered to grant bail on all charges, pursuant to s 59(1) of the Youth Justice Act 1992 (“YJA”), if it is appropriate to do so.
The applicant who was born on 4 March 2011 and therefore presently aged 12 years, is presently remanded in custody in respect of all of the offences.
By indictment 26 of 2023 she is charged, conjointly with her older sister, with three offences of robbery in company and an offence of assault occasioning bodily harm in company, all allegedly committed on 4 February 2023 and a further charge of assault occasioning bodily harm and also common assault allegedly committed on 5 February 2023.
By indictment 25 of 2023 the applicant is charged, again with her sister and another juvenile co-accused, with a sequence of offences committed between 10 and 12 March 2023, being torture, deprivation of liberty, stealing, burglary and stealing and attempting to pervert justice. It is…

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 GSR

Details

AGLC: R v GSR [2023] QChC 36
Case: [2023] QChC 36
Decision Date: 20 December 2023

CaseChat Overview and Summary

In the matter of R v GSR, the defendant, GSR, an applicant, has applied for bail before the Childrens Court on various charges. The court must determine whether the applicant poses an unacceptable risk of the relevant kind and if it is not practicable to adequately mitigate that risk by imposing particular conditions of release on bail. Additionally, the court must consider whether the respondent has evidence to rebut the presumption in section 29(2) of the Criminal Code that the applicant is not criminally responsible for the offending. The court must also consider whether the applicant is at risk of being held in detention beyond a period which is appropriate for the offending.

The court held that it was not appropriate for there to be a grant of bail to the applicant as matters stand. The court found that, as specifically provided in sections 48AAA(4) and (5), a child may be remanded in custody in circumstances where the court has information indicating there may be an unacceptable risk of a matter mentioned in subsection (2) or (3), but does not have enough information to properly consider the matter. The court found that it did not have enough information to properly consider the matter at hand.

Consequently, the court made the appropriate orders to adjourn the further consideration of the application until 9:00am on 23 January 2024, pending the provision of any further information including, but not limited to, the result of the NDIS application and engagement of any additional supports and interventions as available to the applicant in the community. The court directed that the parties are to file and serve any further materials to be relied upon, by 3:00pm on 22 January 2024.

Orders

Orders of the court

Adjourn the further consideration of this application until 9:00am on 23 January 2024, pending the provision of any further information including, but not limited to, the result of the NDIS application and engagement of any additional supports and interventions as available to the applicant in the community.

Direct that the parties are to file and serve any further materials to be relied upon, by 3:00pm on 22 January 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons which have been noted, it is not appropriate for there to be a grant of bail to the applicant as matters stand. As is specifically provided in s 48AAA(4) and (5), a child may be remanded in custody in circumstances where “the court has information indicating there may be an unacceptable risk of a matter mentioned in subsection (2) or (3), but does not have enough information to properly consider the matter”.Conclusion Accordingly the appropriate orders, in these circumstances, is to adjourn the further consideration of this application until 9:00am on 23 January 2024, pending the provision of any further information including, but not limited to, the result of the NDIS application and engagement of any additional supports and interventions as available to the applicant in the community. It is directed that the parties are to file and serve any further materials to be relied upon, by 3:00pm on 22 January 2024.

Ratio Decidendi

Legal Principle Established

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