Re Application for bail by JF - [2017] VSC 139

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0028

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by JF

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2017
DATE OF JUDGMENT:	23 February 2017
CASE MAY BE CITED AS:	Re Application for bail by JF
MEDIUM NEUTRAL CITATION:	[2017] VSC 139

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CRIMINAL LAW – Bail – Adjournment of two weeks - Children’s Court – Bail refused - 16 year old applicant - Show cause – Unacceptable risk – One step process – Significant criminal history – Family circumstances – Applicant transferred from youth detention to adult custody – Applicant injured while in adult custody - Bail Act 1977 (Vic) ss 3B, 4(4), 5(1) – Children, Youth and Families Act 2005 (Vic) s 362 - Bail granted on a provisional two week basis – Conditions of bail.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC and Mr J Mortley	Dotchin Tan
For the Respondent	Mr P Murphy	Victoria Police

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HIS HONOUR:

On 15 February 2017, JF gave notice of his intention to apply for bail. On the same day an affidavit sworn by his solicitor, CT, in support of the application was filed. On 17 February 2017 an affidavit in opposition to bail was sworn and filed by Sergeant SD of Victoria Police. The application for bail was opposed.

The applicant was born on 28 October 2000 and is therefore 16 years of age. He has been remanded in custody by a Children’s Court Magistrate on charges of aggravated burglary, theft, handling stolen goods, driving at a dangerous speed and two charges of theft of a motor vehicle. These incidents took place on 6 December 2016. He is further charged with theft of a motor vehicle, theft, and two charges of reckless conduct endangering serious injury. These charges are based on events occurring on 29 December 2016.

In this case it is common ground that the applicant is in a show cause position for two reasons. Firstly, pursuant to s 4(4)(bc) of the Bail Act he is charged with aggravated burglary, and secondly he is the subject of charges relating to indictable offences alleged to have been committed whilst he was in the community awaiting trial for another indictable offence.[1] The applicant is therefore required to show cause as to why his detention in custody is not justified.
[1]S 4(4)(a) Bail Act 1977 (Vic).

As I have made clear on several previous occasions, I adhere to the view expressed by Maxwell P sitting as a trial judge in the bail application of Asmar,[2] where his Honour concluded as follows on the issue of an applicant showing cause under s 4(4) of the Bail Act.

In my view the question - the only question - for the Court on an application to which s 4(4) applies is: ‘Has the applicant shown cause why his/her detention in custody…

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 JF

Details

AGLC: Re Application for bail by JF [2017] VSC 139
Case: [2017] VSC 139
Decision Date: 23 February 2017

CaseChat Overview and Summary

The case of Re Application for Bail by JF was heard in the Children's Court of Victoria, where the applicant, a 16-year-old with a significant criminal history, sought bail after being transferred from youth detention to adult custody. The applicant had been injured while in adult custody and sought bail to address this concern. The prosecution opposed the application, arguing that the applicant presented an unacceptable risk to the community if released. The court had to determine whether the applicant should be granted bail under the Bail Act 1977 (Vic) and the Children, Youth and Families Act 2005 (Vic).

The central legal issue before the court was whether the applicant's risk to the community, given his criminal history, family circumstances, and the nature of his injuries, outweighed the need for him to address these issues outside of detention. The court was required to consider the principles outlined in the Bail Act, particularly sections 3B, 4(4), and 5(1), which detail the conditions under which bail may be granted or refused. Additionally, the court had to consider the provisions of the Children, Youth and Families Act, which provide specific guidelines for bail applications in the Children's Court.

In its decision, the court found that the applicant's significant criminal history and the risk he posed to the community were substantial factors against granting bail. The court emphasised that the applicant had not demonstrated a genuine change in circumstances that would warrant a departure from the usual approach in such cases. Despite the applicant's injuries and family circumstances, the court determined that these factors did not sufficiently mitigate the risk he posed. The court concluded that the applicant had not shown that it was in the interests of justice to grant bail. However, the court did grant bail on a provisional basis for two weeks to allow the applicant to address his injuries and to enable further assessment of his circumstances.

The court imposed specific conditions on the bail, including requirements for the applicant to reside at a specified address and to report to a bail supervisor regularly. The court also ordered that the applicant refrain from any contact with certain individuals and locations. This provisional bail was intended to provide the applicant with an opportunity to address his injuries and to facilitate further evaluation of his suitability for release. The court's decision highlighted the importance of balancing the applicant's need to address personal issues with the need to protect the community from potential harm.

Orders