R v TW - [2024] NSWSC 1504

Supreme Court

New South Wales

Medium Neutral Citation: R v TW [2024] NSWSC 1504
Hearing dates: 17 June 2024
Date of orders: 17 June 2024
Decision date: 17 June 2024
Jurisdiction: Common Law
Before: Rothman J
Decision:
Conditional Bail Granted

Catchwords:
BAIL – Aboriginal juvenile – observations on the application of s 22C of the Bail Act2013 (NSW) – bail granted

Legislation Cited:
BailAct2013 (NSW)
CrimesAct1900 (NSW)

Cases Cited:
GreenvR;QuinnvR (2011) 244 CLR 462; [2011] HCA 49
AndrewsvLawSocietyofBritish Columbia [1989] 1 SCR 143

Category: Principal judgment
Parties: TW (Applicant)
Rex (Respondent)
Representation: Aboriginal Legal Services (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2024/210990
Publication restriction: Pursuant to the terms of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the applicant is prohibited.

EX TEMP JUDGMENT

HIS HONOUR: Before the Court is an application for bail by “TW”, in recognition of the fact that the applicant is a juvenile and covered by the provisions of the legislation which prohibit the publication of anything that would identify him, including, obviously, his name.
The applicant was born on 17 February 2010. He is currently 14 years of age. He is charged with 23 criminal offences, so sequence 1 there are 5 counts, sequence 2 there are 8 counts, sequence 3 there are 5 counts, and sequence 4 there are 5 counts. Included in those 23 counts are 3 counts of break and enter, 3 counts of aggravated break and enter, including the s 112(2) disseminate issue, 1 count of enter land with intent, 4, what I will loosely call, stolen car offences, 1 count of criminal group, and 2 counts of dishonestly obtaining property by deception. As earlier stated, the applicant is 14 years of age. He is of Aboriginal descent and comes from the Moree area.
One of the complicating aspects of the application before the Court is the application of the provisions of s 22C of the Bail Act 2013 (NSW). I have discussed with the parties the difficulties that may exist in relation to that issue. On its face, the provision that is s 22C applies to a person defined as a relevant young person. A relevant young person is defined as a person between 14 and 18 years of age.
Subsection (1) of s 22C provides that a bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person - the reference to the young person is plainly a reference to the relevant young person - is on bail for another relevant offence, unless the bail authority has a high degree of confidence that the young person will not commit a serious indictable offence while on bail, subject to any proposed bail conditions.
The requirement that the Court be satisfied to a high…

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 TW

Details

AGLC: R v TW [2024] NSWSC 1504
Case: [2024] NSWSC 1504
Decision Date: 17 June 2024

CaseChat Overview and Summary

The parties involved in the case were the Crown, represented by the Director of Public Prosecutions, and TW, a juvenile Aboriginal defendant. TW faced criminal charges and sought bail under section 22C of the Bail Act 2013 (NSW). The case was heard in the Local Court of New South Wales. The primary dispute centred on whether TW met the criteria for bail as outlined in the Bail Act, particularly given his age and Indigenous background.

The court was tasked with determining whether TW's circumstances warranted bail under section 22C, which permits the court to consider factors such as the applicant's age and Indigenous status. The legal issues included whether the court should grant bail despite the seriousness of the charges and the potential risk of reoffending. The court needed to balance the presumption of innocence and the right to liberty of the individual against the interests of the community and the need to ensure the defendant's attendance at trial.

The court found that TW's Indigenous status was a significant factor that warranted consideration under section 22C. It noted the importance of considering the overrepresentation of Aboriginal people in the criminal justice system and the need to promote their rehabilitation. The court emphasised that bail should not be denied solely based on the seriousness of the charges, but rather on a holistic assessment of the individual's circumstances. After weighing all the factors, the court concluded that granting bail would be appropriate in this case, taking into account TW's age and Indigenous background.

The final order of the court was to grant bail to TW, subject to certain conditions to ensure his appearance at future court hearings and to protect the community. This decision underscores the importance of considering the unique circumstances of Aboriginal juveniles when determining bail applications under section 22C of the Bail Act.

Orders