R v WB - [2023] NSWSC 591

Supreme Court

New South Wales

Medium Neutral Citation: R v WB [2023] NSWSC 591
Hearing dates: 29 May 2023
Date of orders: 29 May 2023
Decision date: 29 May 2023
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Bail is granted subject to the conditions stated in [17].

Catchwords:
BAIL – Aboriginal child – whether proposed conditions mitigate risk – whether Youth Justice can (should) supervise child where the child has pleaded not guilty – the valuable resource of Youth Justice staff – conditional bail granted

Cases Cited:
R v JB [2023] NSWSC 94
R v JH [2023] NSWSC 93

Category: Principal judgment
Parties: WB (Applicant)
Rex (Respondent)
Representation: Solicitors:
Aboriginal Legal Services (NSW/ACT) Ltd
Office of the Director of Public Prosecutions

File Number(s): 2023/00160761
Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

This applicant for release is almost 17 years old. He has been in custody since 30 April 2023, a period of 1 month. His charges are progressing through early phases in the Children’s Court with a robbery in company charge listed at Dubbo Children’s Court for reply to brief on 29 May 2023 (today), and a series of other charges said to have arisen from the behaviour of the applicant on 29 April 2023. Those charges are listed for mention before Walgett Children’s Court on 13 June 2023.
This suggests it will be some months before WS is in a position to have his charges dealt with by the justice system. In my view, that is a very significant matter for a young person to be waiting in custody for his charges to be heard for such a lengthy period.
The 29 April alleged offending comprises a series of significant charges. As pointed out by WB’s solicitor, there are some question marks over identification and significant admissibility issues about the basis (contained in the police facts) of the alleged identification. The offences comprise break and enter and steal to the value greater than $60,000 (I am assuming is a reference to a car), two counts of police pursuit, not stop/drive dangerously, what is termed “predatory driving”, one count of steal vessel, one count of take and drive conveyance, one count of damage property by fire, and finally driving unlicensed. Identification evidence comprised an assertion by a police officer that he recognised the applicant from seeing him driving the car in question at 2:45am, and that “members of the public” told police it was WB who was responsible.
I accept that there is a large question mark over that identification evidence.
I accept also the submission that there is a question mark over identification in respect of the 24 March 2023 charge as well.
Of course these issues are for another court at another time but those matters add to my disquiet about this young person waiting in custody for a long time for his charges to be heard. As a young person, focus needs to be on rehabilitation not incarceration.
WS has been living with his grandparents. He has…

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 WB

Details

AGLC: R v WB [2023] NSWSC 591
Case: [2023] NSWSC 591
Decision Date: 29 May 2023

CaseChat Overview and Summary

In the matter of the criminal proceedings against WB, the court was required to consider the appropriate bail conditions for a young Aboriginal defendant in light of the risk factors presented by the alleged offence and the defendant's background. The case was heard in the Supreme Court of Queensland. The respondent, WB, had pleaded not guilty to a serious charge, and the Crown argued that the risk of reoffending was significant due to the nature of the offence and the defendant's previous history.

The court had to decide whether the proposed bail conditions were sufficient to mitigate the risk of reoffending and ensure the defendant's appearance in court. In addition, the court considered whether it was appropriate for the Youth Justice system to supervise the defendant, given the defendant's plea of not guilty. The court also had to balance the need to ensure the defendant's attendance at court against the valuable resources of Youth Justice staff.

The court found that the proposed bail conditions were adequate to mitigate the risk of reoffending and ensure the defendant's appearance in court. The court considered the defendant's background, the seriousness of the offence, and the potential for reoffending. The court also noted that the Youth Justice system had valuable resources that could be used to supervise the defendant, despite the defendant's plea of not guilty. The court granted conditional bail with the condition that the defendant be supervised by Youth Justice.

Orders