Re Application for bail by BP - [2019] VSC 256

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]…

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 Application for bail by BP

Details

AGLC: Re Application for bail by BP [2019] VSC 256
Case: [2019] VSC 256
Decision Date: 5 March 2019

CaseChat Overview and Summary

In the Children's Court of Victoria, the case of Re Application for bail by BP involved the applicant, BP, who had been charged with additional indictable offences while already on bail for other indictable charges. The matter was brought before the court for a determination on whether BP should be granted bail on the new charges. The respondent, the state, argued against granting bail due to the unacceptable risk that BP posed if released.

The primary legal issue before the court was whether BP had demonstrated a compelling reason to warrant bail under the Bail Act 1977 (Vic). The court acknowledged that the respondent had conceded that a compelling reason existed, but focused on whether the risk posed by BP could be mitigated through the imposition of suitable bail conditions. The Youth Justice Bail Service Report was pivotal in this determination, as it assessed BP as suitable for intensive bail support, thereby addressing the risk concerns.

The court found that the Youth Justice Bail Service Report's assessment provided a reasonable basis to impose bail conditions that would sufficiently mitigate the risk posed by BP. The court was satisfied that with the proposed conditions, the risk was manageable, and the compelling reason presented by BP warranted granting bail. Therefore, the court exercised its discretion under the Bail Act 1977 (Vic) and granted bail to BP, subject to specific conditions aimed at ensuring compliance and risk management.

The final orders included strict conditions of bail, including residence at a specified address, adherence to a curfew, and regular reporting to the Youth Justice Bail Service. These conditions were designed to provide a framework that would support BP's rehabilitation and ensure public safety. The court's decision highlighted the importance of balancing the rights of the accused with the need to protect the community.

Orders