Re Application for bail by BP
[2019] VSC 256
•5 March 2019
| IN THE SUPREME COURT OF VICTORIA | Redacted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0049
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by BP |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 March 2019 |
CASE MAY BE CITED AS: | Re Application for bail by BP |
MEDIUM NEUTRAL CITATION: | [2019] VSC 256 |
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CRIMINAL LAW – Bail refused in Children’s Court – Applicant charged with indictable offences whilst already on bail charged with an indictable offence – Applicant required to show compelling reason – Compelling reason conceded by Respondent – Respondent alleging unacceptable risk – Whether conditions of bail sufficient to mediate risk – Youth Justice Bail Service Report assessing Applicant as suitable for intensive bail support – Bail granted with conditions –Bail Act1977 (Vic) ss 3AAA, 4, 4AA(3), 4C, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Allen | Patrick Allen Law |
| For the Respondent | Ms B Cowley | Victoria Police |
HER HONOUR:
Introduction
The Applicant seeks bail in respect of charges arising from two different episodes of alleged offending in December 2018 and February 2019. He is entitled to the presumption of innocence in respect of all charges and all charges are contested by him. He was arrested and charged by Constable Thoms (‘the Thoms charges’) as a result of an incident on 9 February 2019 at [redacted] Shopping Centre. The Thoms charges are: Charge 1, affray; Charge 2, intentionally cause injury; Charge 3, recklessly cause injury, Charge 4, assault by kicking; Charge 5, assault in company; Charge 6, unlawful assault; Charge 7, commit indictable offence whilst on bail for another indictable offence. The alleged victim in respect of Charges 2, 3, 4, 5 and 6 is [redacted]. It has been pointed out by Mr Allen, counsel for the Applicant, that Charges 4, 5 and 6 appear to be alternative charges to Charges 2 and 3 or otherwise subsumed by Charges 2 and 3 and further that Charges 2 and 3 are alternatives to each other.
After having been charged with the above-mentioned offences, the Applicant has been detained in custody at Parkville Youth Justice Centre since 15 February 2019. When brought before the Melbourne Children’s Court (‘the Children’s Court’) on 19 February 2019 he was refused bail on the grounds that there was an unacceptable risk that the Applicant would commit an offence whilst on bail. The Applicant had previously been bailed on charges laid by Constable Wise (‘the Wise charges’) but bail was revoked on those charges, following refusal of bail on the Thoms charges later that day.
The Wise charges relate to offences allegedly committed on 19 December 2018 at St Albans and comprise: Charge 1, robbery (charge to be withdrawn by police); Charge 2, robbery and Charge 3, assault in company.
The Applicant is a child being still only seventeen years of age. He is of [redacted] ethnicity and is in Year 12 at a [redacted] Secondary School [redacted] where he is undertaking the Victorian Certificate of Applied Learning (‘VCAL’). This is the Applicant’s first significant period spent in custody, being a period of 17 days. He also spent 28 December 2018 and 2 and 3 January 2019 in custody in relation to the Wise charges. Therefore, he has spent a total of 20 days in youth detention arising from the Wise charges and/or the Thoms charges.
The sequence of alleged offending and alleged non-compliance with bail requirements
The Applicant was arrested and interviewed on the Wise charges on 28 December 2018 and was granted supervised bail by the Children’s Court on 28 December 2018. He was then arrested on 2 January 2019 due to alleged breach of bail conditions on 31 December 2018 and 1 January 2019 when he was alleged to have breached his curfew condition. On 3 January 2019 he was released for a further period of supervised bail. His bail conditions required that he remain involved with Youth Justice and he did in fact attend six out of seven scheduled appointments arranged by Youth Justice. The Applicant was arrested on the Thoms matters on 15 February 2019 and brought before the Children’s Court on 18 February 2019, when the police made an application for bail to be revoked. The application was successful, and bail was revoked on 19 February 2019. According to the Youth Justice Bail Service report, Constable Wise advised of three incidents of breach of curfew conditions on 26 January 2019 and 5 and 9 February 2019. When questioned by Youth Justice about these matters the applicant said he had gone out with the intention of being home by curfew.
The relevant provisions of the Bail Act
Pursuant to s 4 of the Bail Act 1977 (Vic) (‘the Act’) the Applicant is entitled to bail unless the Act requires the Court to refuse bail.
Because of the nature and sequence of charges faced by the Applicant, the present application requires the Court to engage in a two-step process in the consideration of bail. Firstly, the requirement that the Court be satisfied by the Applicant of compelling reason for the grant of bail and secondly, the Court must refuse bail if the Respondent satisfies the Court of an unacceptable risk under the criteria set out in s 4E of the Act.
The ‘show compelling reason’ test
This test is enlivened because the Applicant is charged with a sch 2 offence, being an offence against the Act,[1] and because he is charged with an indictable offence allegedly committed whilst on bail for another indictable offence; a matter which is referred to in sch 2 cl 1(a).[2] The offences invoking sch 2 give rise to the operation of s 4AA(3) of the Act, and s 4C of the Act requiring the Applicant to show compelling reason for the grant of bail and requiring the Court to refuse bail unless satisfied that compelling reason exists for the grant of bail.
[1]The accused is charged under s 30B of the Act with committing an indictable offence on bail. See also sch 2 cl 30.
[2]Previously charged with the indictable offence of robbery by Constable Wise and new indictable charges laid by Constable Thoms include affray, cause injury intentionally and cause injury recklessly.
In determining whether compelling reason exists, the Court must take into account the ‘surrounding circumstances.[3] Section 3AAA provides that when the bail decision maker is directed to take into account the surrounding circumstances, the decision maker must take into account all the circumstances that are relevant to the matter, including, but not limited to the following:
[3]Bail Act 1977 (Vic) Section 4C(3) (‘the Act’).
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(g) the accused's personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k) the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If upon a synthesis of the surrounding circumstances, there is a forceful or convincing reason for granting bail the test will be satisfied.[4] The current provisions were considered by Beach JA in the recent bail decision of Re Alsulayhim,[5] with his Honour determining that the Applicant was entitled to rely on all the circumstances of the case to satisfy the compelling reason test.[6]
[4]Re Ceylan [2018] VSC 361, at [48].
[5][2018] VSC 570.
[6]Ibid [28].
Step 2-unacceptable risk test
Even where the Court is satisfied that compelling reason exists for the grant of bail, the Court must refuse bail if, upon applying the unacceptable risk test, the Court is persuaded that there is an unacceptable risk that the Applicant, if released on bail, would endanger the safety or welfare of any person; commit an offence while on bail; interfere with a witness or otherwise obstruct the course of justice in any matter; or fail to surrender into custody in accordance with the conditions of bail.[7] The Prosecutor bears the burden of satisfying the bail decision maker as to the existence of a risk of a kind mentioned in s 4E(1)(a) and that the risk is an unacceptable risk.[8]
[7]The Act s 4E(1).
[8]Ibid 4E(2)(a)-(b).
Under s 4E(3) the Court is again directed to consider the ‘surrounding circumstances’ in determining whether there is any relevant risk and whether there are any conditions of bail that can be imposed to mitigate risk so that it is not an unacceptable risk.
The Applicant’s submissions in support of bail
Mr Allen pointed to the fact that the Applicant is supported in his application for bail by the presence at court of his mother and father, Youth Justice worker [redacted] and additional community support workers, [redacted] and [redacted].
Consideration of the Applicant’s status as a child and vulnerability to impacts of detention
The Applicant is entitled to rely on s 3B(1) of the Act which requires the Court to take into account certain matters when considering bail in respect of a child including:
(a) the need to consider all other options before remanding the child in custody; and
(b) the need to strengthen and preserve the relationship between the child and the child's family, guardians or carers; and
(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e) the need to minimise the stigma to the child resulting from being remanded in custody; and
(f) the likely sentence should the child be found guilty of the offence charged; and
(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
Under s 3B(2) the Court, in making a determination as to bail in respect of a child, may take into account any recommendation or information contained in a report provided by a bail support service.
Under s 3AAA the Act provides a non-exclusive list of matters that may be considered as part of the surrounding circumstances relevant to a grant of bail. Section 3AAA(1)(h) lists ‘any special vulnerability of the accused, including being a child, or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness’. In the present application, as well as being a child, there is a concern that the Applicant may have a cognitive impairment or intellectual disability and this matter is still under investigation.
Mr Allen submitted that the jurisprudence relating to child offenders recognises that there are risks and adverse consequences for young people being kept in custody. He submitted that the longer the Applicant remains in custody, the greater the potential detriment to him.
Family network
The Applicant’s usual home address is with his mother and younger siblings at a family residence [redacted]. The Applicant’s father lives nearby in [redacted], having separated from the Applicant’s mother. Mr Allen submitted that the Applicant’s parents are very concerned for their son’s wellbeing and that they are keen for him to be released from custody.
Educational and Vocational circumstances
The Applicant has been fortunate to have been granted a supported place at [redacted] which he has been attending since Year 7. He is enrolled in foundation level VCAL. He is assisted by teacher’s aides due to a concern about possible cognitive or intellectual impairment impacting on his developmental progress. He has struggled academically and Youth Justice has arranged an appointment on 3 May 2019 with neuropsychologist Dr Lauren Fitzpatrick to determine the cause of his learning difficulties.[9] If granted bail, the school have indicated that the Applicant’s place in the VCAL programme remains open to him.
[9]A previous Children’s Court Clinic report was inconclusive regarding the presence of an intellectual disability.
Community and Mentoring support
Mr Allen relied on evidence given by Mr [redacted]. Mr [redacted] is a Community Engagement officer, at Youth Justice.[10] He gave evidence that part of his role is to bridge the gap between Youth Justice and members of the [redacted] community. His aim is to support youth who are at risk and to also engage with their family. He has had previous experience of working with disengaged youth in a school setting. He started working with the Applicant on 28 December 2018 and was also working to support the Applicant’s mother [redacted] and her other children. Mr [redacted] said his focus with the Applicant was occupational and was aimed at getting him ready for work and helping him prepare to get a driver licence. He said that compared to some other children the Applicant had been showing a very positive response to engagement with him.[11] He observed that some recent developments in the Applicant’s situation included that the Applicant’s mother had been reaching out for more community assistance and that there was now the added offer of involvement by the Community Support Group (‘CSG’) available through Mr [redacted]. This meant a coordinated approach could be provided to the Applicant. Mr [redacted] also indicated that he was able to be in telephone contact with the Applicant’s mother and father regarding any concerns they had, or concerns held by Youth Justice and phone contact of this nature had occurred in the past.
[10]Department of Justice and Regulation.
[11]Transcript 67.
Mr Allen also called Mr [redacted] to give evidence in support of the application for bail. Mr [redacted] gave evidence that he is a youth worker employed at [redacted] Community & Education Centre under the auspices of the CSG, which is an initiative funded by the Department of Premier and Cabinet to support [redacted] youth and families. His role is to engage young people with sport and career pathways and provide consistent mentoring to them. He testified that the Applicant’s mother approached him for help with her son and that CSG is able to provide outreach support including going to the homes of clients or driving clients to sporting events. If the Applicant were released on bail Mr [redacted] would aim to provide consistent monitoring as well as mentoring to the Applicant. His organisation would explore career pathways with the Applicant and there are also family packages available to support the family.
In summary, it was submitted by Mr Allen that the Applicant has culturally appropriate mentoring support and supervision available to him from Mr [redacted] and Mr [redacted] who will assist the Applicant’s compliance with the requirements of bail. Mr Allen emphasised the special nature of the outreach support now available for the Applicant.
Youth Justice Bail Service Report
Mr Allen also relied on the Youth Justice Bail Service Report which was favourable to ongoing support for the Applicant. Mr [redacted] (Bail Supervision Worker) and Ms [redacted] (Program Manager) co-authored the report.[12] The report indicates that the Applicant has been assessed as suitable for intensive bail support. A comprehensive timetable has been devised for the Applicant to maximise his support on bail and ensure that he is occupied with useful activities in addition to school. For example, the Applicant will be encouraged to undertake football participation with the [redacted] Football Club. Mr Allen submitted that the report showed that the Applicant had been attending most of his Youth Justice appointments prior to being arrested on the Thoms charges, notwithstanding issues raised about breach of curfew or non-association conditions. Mr Allen argued that, although the Respondent has raised concerns about gaps in the proposed weekly timetable set by Youth Justice, the gaps in the timetable were realistic in light of the extensive commitments included in the timetable.
[12]Dated 5 March 2019.
Absence of Criminal History
Mr Allen submitted that the Applicant was able to point to an absence of prior convictions,[13] making it unlikely that he would be sentenced to a custodial order even if convicted of the current charges. This was said to be due to the structure of sentencing in the Children, Youth and Families Act 2005 (Vic) (‘Children, Youth and Familiies Act’) where the legislative focus is on rehabilitation. Mr Allen made reference to s 362 of the Children, Youth and Families Act which provides a number of criteria to be applied when sentencing a child after an offence is found proven. Mr Allen submitted that there have been a number of judicial pronouncements on the importance of affording appropriate consideration to the potential vulnerability of children who come before the Courts.[14]
[13]The Applicant has received a diversion in the past but Mr Allen submitted that the Court should not give much weight to that matter, especially since the applicant had complied with the diversion requirements.
[14]Woods v DPP [2014]VSC 1, [95]; Re FA [2018] VSC 372; Re Application for Bail by JF [2017] VSC 139, [41].
Absence of history to fail to appear
The Applicant has never failed to appear on bail. Mr Allen submitted that breach of conduct conditions in bail orders relating to children, such as breaches of curfew or non-association conditions, were not treated as a criminal offence where the breach is committed by a child;[15] consistent with jurisprudence that recognises and acknowledges the inherent immaturity, vulnerability, impressionability of young people and their natural tendency to make mistakes in respect of matters such as curfews or avoiding peers.
[15]The Act s 30A(3).
Weak Prosecution Case in respect of the Thom charges
Mr Allen argued that the Thoms charges are unlikely to be established beyond reasonable doubt. The issue in dispute is identification of the Applicant as one of a large number of youths who are alleged to have committed the offence of affray and to have assaulted [redacted]. Mr [redacted] had finished work at the [redacted] Shopping Centre and was walking back to his car carrying two hamburgers. Constable Thoms describes the events as follows:
While walking through the car park [redacted] was approached by a large group of youths consisting of mainly [redacted] appearance. One of the youth approached [redacted] from behind where he snatched a burger out of his hand. [Redacted] turned around and confronted the youth and said ‘give me back the burger’.
Constable Thoms describes in his report that 20 youths then punched and kicked Mr [redacted] before running away through the carpark. Mr [redacted] received bruises and lacerations to his head during the incident. Whilst the Prosecution rely on CCTV images and mobile phone images to identify the Applicant as one of the assailants, these images were submitted by Mr Allen to be far from clear. Mr Allen conceded that, when interviewed by police, the Applicant admitted he was at the [redacted] Shopping Centre on the evening in question, after the conclusion of the [redacted] Festival, but said he was at a different location from where the incident took place and he did not admit participation in the incident.
Mr Allen submitted that the Prosecution case could not be proved beyond reasonable doubt. He referred to the CCTV and mobile phone footage which was played to the Court during Constable Thoms evidence as showing ‘dozens and dozens’ of young people of a similar appearance milling in the vicinity of the incident in question. The purported identification of the Applicant by Constable Thoms and Sergeant Dwyer, when they viewed the CCTV and mobile phone footage on a later date, was submitted to be flawed. Constable Thoms had conceded under cross-examination that he had only seen the Applicant in person once before 9 February 2019, yet when he viewed the footage he claimed to recognise the Applicant based only on noticing a distinctive [redacted] haircut and ‘widely spread nose’ on a person appearing in the footage. The single previous sighting did not involve any interaction with the Applicant and was from a distance at a train station. A strong argument was available that the evidence of Constable Thoms was inadmissible as a result of the High Court decision of Smith v The Queen.[16] A similar argument applied to the evidence of Sergeant Dwyer who was shown the CCTV and allegedly recognised the Applicant.
[16](2001) 206 CLR 650.
Mr Allen contended that the evidentiary basis for the Prosecution case remained very weak, given the substantive law requirements attaching to identification evidence. This was based on the argument that, if this purported recognition evidence were ruled inadmissible, the trier of fact would be required to view the CCTV and mobile phone footage and compare the images with the appearance of the Applicant before the Court. The evidence of Senior Constable Biggs, that he saw the Applicant in [redacted] earlier and later the night that Mr [redacted] was assaulted did not significantly advance the Prosecution case. Regarding the strength of the case in respect of the Wise charges, Mr Allen said that those charges depend upon CCTV footage along with the Applicant’s admission that he was in the vicinity at the time of the alleged incident in that case. The Applicant is alleged to have participated when a number of youths of [redacted] appearance approached another group of youths, whereupon an assault and robbery took place.
Delay
Mr Allen submitted that the Applicant intends to contest the Wise charges and the Thoms charges and will face some delay in the Children’s Court before a contest can be heard in respect of each matter, although it was conceded that the delay may be in the order of several weeks to a few months. Nevertheless, as a child, any delay, even of a lesser order than in the adult jurisdiction would have significant ramifications for the Applicant.
Combination of circumstances
Mr Allen relied on all of the foregoing surrounding circumstances in combination as showing compelling reason for the grant of bail. He also relied on the Respondent’s concession that compelling reason could be established in this case.
Regarding the submission as to unacceptable risk put forward by the Respondent, Mr Allen submitted that the risks of reoffending whilst on bail, endangering the safety or welfare of any person or failing to answer bail could be properly mediated by fixing strict bail conditions acknowledging the involvement of ‘a cocoon’ of supportive persons and agencies aimed at ensuring the Applicant’s compliance with bail requirements. Mr Allen referred to all of the matters relied on to demonstrate compelling reason as also being relevant to the unacceptable risk test but also relied on the protective measures available through the fixing of conditions of bail. He referred to the approval of the Applicant for intensive bail support put forward in the Youth Justice Bail Service Report. He submitted that the Applicant’s mother is ready and willing to support his compliance with bail, including taking him to report on bail if reporting conditions are imposed by the Court.
The Respondent’s submissions opposing bail
Ms Cowley on behalf of the Respondent conceded that the show compelling reasons test was able to be met by the Applicant in the present case but argued that there was an unacceptable risk of offending whilst on bail, endangering the safety or welfare of any person or failing to answer bail, if bail were granted on conditions of the kind proposed by the Applicant.
Ms Cowley relied on the evidence of Constable Thoms, including his report setting out his opposition to bail.[17] The Prosecution case in respect of the Thoms charges turned on a number of factors. As discussed above, Constable Thoms opined that the Applicant was observable in CCTV and mobile phone footage showing the grouping of young people before, at the time of, and after Mr [redacted] was assaulted. Further, the Applicant was considered by Constable Thoms to have a distinctive [redacted] hairstyle at the time of the incident and a distinctive nose. The Applicant admitted, when interviewed by police, that he was at the shopping centre around the time the assault occurred. The Applicant had also been spoken to by Senior Constable Biggs during the evening of 9 February 2019 and had been reminded of his curfew requirement, and at the time was wearing clothing believed to bear a resemblance to that worn in the footage taken from [redacted] Shopping Centre.[18] The Respondent did not concede that the Prosecution case on the Thoms charges was weak.
[17]Dated 27 February 2019.
[18]The alleged similarity of attire was challenged in cross-examination of Mr Thoms regarding the effect of the evidence of Constable Biggs.
Going to the unacceptable risk test under the Act, the Respondent submitted that the Court should be satisfied that there was an unacceptable risk that the Applicant would commit further offences whilst on bail, endanger the safety and welfare of any person or fail to answer bail. The report prepared by Constable Thoms noted that, whilst it was not alleged that the Applicant was a member of the ‘[redacted] gang’, [redacted] were said to be affiliated with the gang and it was suggested that the Applicant may be subject to the influence of members of that gang. Concerns were also raised about [redacted].
Ms Cowley submitted that stringent conditions were already in place before the Applicant’s arrest on the Thoms charges, yet there had been occasions of the Applicant showing a disregard for those conditions. This included him being away from his home during the curfew period and associating with peers he was prohibited from associating with. The Respondent submitted that the Applicant’s mother, Ms [redacted] had not been able to manage her son’s behaviour even with the assistance previously provided by Youth Justice after the Wise charges were laid. There was an ongoing risk that the Applicant would be subject to negative peer influences as mentioned in the Youth Justice Bail Service Report. It was also noted that [redacted]. Ms Cowley also referred to the proposed intensive bail support timetable and submitted that there are still gaps in the timetable including on weekends when the Applicant would be at risk of reoffending.
Additionally, it was said that the Applicant’s mother had left Australia to visit [redacted] for a period of time in January 2019, after the Wise charges were laid, and when police visited to check compliance with curfew, the Applicant’s father was present but could not account for the Applicant’s whereabouts. This was submitted to demonstrate a risk of the Applicant not answering his bail.
The Respondent argued that the Court should find that that the risk of reoffending, endangering the safety and welfare of any person or failing to appear remained unacceptable even with the greater level of bail support now available to the Applicant under the proposed bail conditions.
Analysis
The Applicant has been undergoing his first significant period in youth detention and this is likely to have had a particularly salutary effect on the Applicant. Indeed, Mr Allen referred to the shock experienced by his client when he was remanded in custody after having been refused bail in the Children's Court.[19] This fact in combination with a number of other surrounding circumstances provides compelling reason for granting of bail. I accept the arguments put forward by Mr Allen that the merits of the Prosecution case are questionable, that the Court should give weight to the Applicant’s absence of prior criminal convictions and absence of incidents of failing to answer bail, and that the Court must give particular consideration to the fact that the Applicant is still a child. As indicated by Mr Allen, in addition to the matters listed in s 3B of the Act, there have been numerous judicial pronouncements emphasising the special considerations attaching to children when considering whether it is necessary for a child to be detained in custody. In my view, it is desirable in this case that the Applicant returns home, resumes school, undertakes the scheduled neuropsychological assessment arranged by Youth Justice for 3 May 2019 and that he receives the intensive support devised under the Youth Justice Bail Service Report timetable.
[19]Transcript 10.
Regarding the application of the unacceptable risk test and the concerns raised by the Respondent, in my view the intensive bail support programme with the comprehensive timetable devised for the Applicant, together with the support of [redacted] College, involvement of Mr [redacted], Mr [redacted] and the Applicant’s parents should in combination reduce the risks raised by the Respondent to an acceptable level. This intensive and coordinated approach should assure the Applicant is occupied in productive pursuits and has the benefit of mentoring and supervision whilst on bail. Conditions of bail engaging these remedial measures should be effective in reducing risk. The experience the Applicant has had in custody since 15 February 2019 should provide an incentive to ensure compliance with conditions of bail. I am satisfied that with appropriate conditions the Applicant does not pose an unacceptable risk of endangering a person, committing an offence on bail or failing to appear on bail.[20]
[20]The Act s 4E.
Bail will be granted on the conditions fixed by the Court.
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