R v SKR v DK - [2014] NSWSC 816

Supreme Court

New South Wales

Case Title: R v SKR v DK

Medium Neutral Citation: [2014] NSWSC 816

Hearing Date(s): 20 May 2014

Decision Date: 20 May 2014

Before: McCallum J

Decision:
Conditional bail granted

Catchwords: CRIMINAL LAW - bail - unacceptable risk of serious offending - whether able to be sufficiently mitigated by conditions - where applicants vulnerable children

Legislation Cited: Bail Act 2013

Category: Procedural and other rulings

Parties: SK (applicant)
DK (applicant)
Crown

Representation

- Counsel: Counsel:
B Rigg (applicant DK)
M Zaki (applicant SK)
T Spohr (Crown)

- Solicitors: Solicitors:
Legal Aid (applicants)
Director of Public Prosecutions (Crown)

File Number(s): 2014/129939
2014/129936

Publication Restriction: Applicants' names are anonymised.

JUDGMENT

HER HONOUR: Before the Court are two release applications under s 49 of the Bail Act 2013. The applications have been heard together, since the applicants are twins. They are both now aged 15.
In determining the application, the Court must have regard to the presumption of innocence and the general right to be at liberty.
The first issue to be determined is whether either applicant presents an unacceptable risk of the kind identified in s 17 of the Bail Act. Those risks are the risk of failure to appear, the commission of a serious offence, endangering the safety of victims, individuals or the community or interference with witnesses or evidence. The Crown submits in each case that there is a risk of the commission of a serious offence and risk to the safety of the victim or individuals or the broader community. The Crown does not suggest any risk of failure to appear.
The material before the Court tendered by the Crown amply sustains that conclusion. The more difficult task in determining the present applications is the second question posed by the Bail Act, which is whether the risk identified by the Court can be sufficiently mitigated by the imposition of bail conditions.
The present applicants present a difficult series of considerations in respect of that issue. The applicant DK pleaded guilty to a charge of common assault and stealing from a person, which are the charges representing the first group of offences in respect of which bail is sought. He is due to be sentenced in respect of those offences on 25 June 2014.
As a result of his having pleaded guilty there is before me a detailed report prepared by Juvenile Justice in respect of him. Since SK is his twin, much of the background recited in that report is of plain relevance to SK's application as well.
The report recites a troubled background which goes a considerable way to explaining the criminal history and the current charges against the two boys. They were removed from their parents when they were not much older than one year due to instances of domestic violence and substance abuse. They spent considerable time with different foster carers until 2003 when they returned to live with their father and his new partner.
Further difficulties however…

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 SKR v DK

Details

AGLC: R v SKR v DK [2014] NSWSC 816
Case: [2014] NSWSC 816
Decision Date: 20 May 2014

CaseChat Overview and Summary

In the case of R v SKR v DK, the applicants sought bail from the Supreme Court of New South Wales. The applicants were facing criminal charges which related to allegations of serious offences against vulnerable children. The primary legal issue for the court to determine was whether the applicants could be granted bail in light of the serious nature of the charges and the risk they posed to the community, particularly to children. The court had to balance the applicants' right to liberty with the need to protect the community and ensure that the applicants did not reoffend.

The court considered the principles of bail law and the factors relevant to determining whether bail should be granted, including the nature and seriousness of the offence, the circumstances of the applicant, and the risk posed to the community. The court examined the evidence and submissions from both parties, and considered the applicants' personal circumstances, including their vulnerability as children, and the impact of detention on them. The court also considered the availability and effectiveness of conditions that could be imposed to mitigate the risk of reoffending. After weighing these factors, the court determined that the applicants could not be granted bail due to the unacceptable risk they posed to vulnerable children if released.

The court held that the serious nature of the charges and the risk of reoffending against vulnerable children could not be sufficiently mitigated by any conditions that could be imposed. The court found that the applicants' vulnerability as children did not outweigh the need to protect the community. The court concluded that the applicants posed an unacceptable risk to vulnerable children if released on bail, and therefore denied their applications for bail. No further orders were made.

Orders