Re An Application for Bail by TB - [2016] VSC 51

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0075

IN THE MATTER of the Bail Act 1977 (Vic)

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IN THE MATTER of an Application for Bail by TB (a pseudonym)

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23, 24 JUNE, 11 JULY 2016
DATE OF JUDGMENT:	11 JULY 2016 (revised 18 July 2016)
CASE MAY BE CITED AS:	Re An Application for Bail by TB
MEDIUM NEUTRAL CITATION:	[2016] VSC 51

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BAIL – Show cause – Child applicant in care of the Department of Health and Human Services on an interim accommodation order – Whether unacceptable risk – Consideration of factors which must be taken into account in determination of bail application by a child – Whether imposition of conditions sufficient to ameliorate risk – Bail Act 1977 (Vic), ss 3B, 4(1), 4(4).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Sleeth	Victoria Legal Aid
For the Respondent	Mr P Ferdinands (23, 24 June 2016);	Victoria Police
Mr P Murphy (11 July 2016)
For the Department of Health and Human Services	Ms A Mendes Da Costa

HIS HONOUR:

The applicant, TB, who turned 14 in March this year, applies for bail. He has no criminal history and, since a magistrate refused bail on 14 June 2016, he has spent one month in custody at the Parkville Youth Justice Precinct in relation to charges arising from alleged offending on 12 June 2016. The applicant is under the care and protection of the Department of Health and Human Services (DHHS).

On 15 April 2016, when caught in the act of an alleged graffiti incident, the applicant was charged with criminal damage. He was released on police bail.

Only 3 days later, on 18 April 2016, it is alleged that he further offended. The applicant was arrested on 10 May 2016 and charged with assault in company, assault by kicking, recklessly causing injury, unlawful assault and criminal damage arising from a number of incidents on 18 April 2016. The applicant was again released on police bail to appear at the Melbourne Children's Court on 30 June 2016, but this time it was a condition of bail that he not attend within the Melbourne central business district bounded by Spring, Flinders, Spencer and La Trobe Streets.

On 12 June 2016 the applicant, in breach of this bail condition, was in the Melbourne CBD area around St Paul’s Cathedral. He was in the company of five other young persons, and they ventured into Birrarung Marr to rob people. That day a number of people were assaulted and robbed in separate incidents by this group. I do not need to set out fully in these reasons the details of those incidents, but I observe that they were very serious assaults and, in particular, one victim suffered quite serious head injuries including a broken cheekbone. The applicant is alleged to have been actively involved in these assaults, including kicking the victims whilst…

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 Re An Application for Bail by TB

Details

AGLC: Re An Application for Bail by TB [2016] VSC 51
Case: [2016] VSC 51
Decision Date: 11 JULY 2016 (revised 18 July 2016)

CaseChat Overview and Summary

The case involved a child applicant, TB, who was under the care of the Department of Health and Human Services on an interim accommodation order. TB applied for bail, and the matter was heard by the court, which needed to determine whether the risk posed by TB was unacceptable and whether imposing bail conditions would suffice to mitigate this risk. The legal issues centred on the application of the Bail Act 1977 (Vic) sections 3B and 4(1) and (4), specifically regarding the considerations that must be taken into account in a bail application by a child and the appropriateness of imposing bail conditions to address any identified risks.

The court examined the statutory requirements and the factors it must consider under the Bail Act. It noted that the primary consideration was whether the risk posed by TB was unacceptable. The court also had to weigh the need for TB to be released on bail against the potential risk to the community if TB were to be released without conditions. The court assessed the evidence presented and the proposed conditions for bail, determining whether these were sufficient to mitigate the risk to an acceptable level. In its analysis, the court applied the relevant provisions of the Bail Act and considered the welfare and best interests of TB, as well as the safety of the community.

After considering all the evidence and the proposed conditions, the court found that the risk posed by TB could be sufficiently mitigated by imposing appropriate bail conditions. It concluded that, while the risk was not negligible, it was not unacceptable when balanced against the benefits of releasing TB on bail. The court held that the proposed conditions were sufficient to address the risk and protect the community. Consequently, the court granted bail to TB, subject to the specified conditions. The final orders reflected the court’s decision to release TB on bail, with the conditions designed to ensure that the risk to the community was minimised while also considering TB’s welfare.

Orders