R v TB - [2025] NSWSC 38

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v TB [2025] NSWSC 38
Hearing dates: 06 February 2025
Date of orders: 06 February 2025
Decision date: 06 February 2025
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Young person released on conditions.

Catchwords:
BAIL – 14 year old Aboriginal child – charged with police pursuit and knowingly carried in conveyance while on bail – these charges to be dropped – Court is still required to apply s 22C of the Bail Act 2013 (NSW) because charges not yet dropped – tension between s 22C Bail Act and s 6 Children (Criminal Proceedings) Act 1987 (NSW) – s 22C requires a child not to be treated equally before the law when accused of certain crimes – child in custody for 3 months as a result of charges that are to be withdrawn – consideration of unacceptable risk – prosecution not established bail should be refused – conditional bail granted

Legislation Cited:
Bail Act 2013 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:
R v BH [2024] NSWSC 1577
R v RB [2024] NSWSC 471
R v TW [2024] NSWSC 1504

Category: Principal judgment
Parties: TB (Applicant)
Rex (Respondent)
Representation: Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecution NSW (Respondent)

File Number(s): 2025/00029598
Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

The applicant, TB, is a 14 year old Aboriginal child who is bail refused for charges that are stated to be soon withdrawn of police pursuit, knowingly carried in a stolen conveyance and resist arrest on 24 November 2024. He had previously been granted bail in relation to offences on 14 November 2024 of knowingly carried in stolen conveyance, aggravated break and enter with intent and possess cannabis.
His charges are listed for hearing or mention in different places. The charges that arise from conduct said to have taken place on 24 November 2024 are listed for hearing at Parramatta Children’s Court on 26 February 2025, just a few weeks away.
The 14 November 2024 charges are next before the Campbelltown Children’s Court for mention on 5 March 2025. It appears they were adjourned from 3 February 2025 without entry of a plea.
TB was initially released on bail on 14 November 2024, but was returned to custody on 25 November 2024, having been arrested after allegedly committing the offences late on 24 November 2024. That means that this 14 year old child has been in custody for three months, as a result of charges that are soon to be withdrawn.
If I do not release him today he will be waiting in custody for an additional three weeks at least. Quite apart from that, I am obliged to consider and apply the requirements of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to these proceedings and in any proceedings involving children, which provides as follows:

6 Principles relating to exercise of functions under Act
A person or body that has functions under…

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 TB

Details

AGLC: R v TB [2025] NSWSC 38
Case: [2025] NSWSC 38
Decision Date: 06 February 2025

CaseChat Overview and Summary

In the case of R v TB, a 14-year-old Aboriginal child was before the court, facing charges related to a police pursuit and knowingly being carried in a conveyance while on bail. The prosecution intended to drop the charges, but the court was still required to apply section 22C of the Bail Act 2013 (NSW) because the charges had not yet been formally withdrawn. The primary legal issue was the tension between section 22C of the Bail Act and section 6 of the Children (Criminal Proceedings) Act 1987 (NSW). Section 22C mandates that a child should not be treated equally before the law when accused of certain crimes, while section 6 of the Children (Criminal Proceedings) Act promotes the welfare and best interests of the child. The court had to determine whether the child should remain in custody for three months due to the pending charges, considering the unacceptable risk posed by the alleged offences.

The court considered the principles outlined in section 22C of the Bail Act, which requires that children should not be treated equally before the law when accused of certain serious crimes. It assessed the risk posed by the child and the potential impact of the alleged offences. However, the prosecution did not establish that bail should be refused outright. The court recognised the importance of the child's welfare and best interests, as stipulated in section 6 of the Children (Criminal Proceedings) Act. After weighing the factors and considering the child's age, the court granted conditional bail, allowing the child to be released pending the formal withdrawal of the charges.

The court's decision highlighted the delicate balance between the principles of section 22C of the Bail Act and section 6 of the Children (Criminal Proceedings) Act. It emphasised the need to consider the child's welfare and best interests, while also addressing the potential risk posed by the alleged offences. The court acknowledged the importance of treating children differently from adults in the criminal justice system, but also recognised the need to ensure public safety. Ultimately, the court determined that the child should be granted conditional bail, allowing them to await the withdrawal of the charges outside of custody.

Orders