Re applications for bail by VN, Ak and CN - [2020] VSC 782

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0298
S ECR 2020 0301
S ECR 2020 0302

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by VN, AK and CN

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2020
DATE OF JUDGMENT:	19 November 2020
CASE MAY BE CITED AS:	Re applications for bail by VN, AK and CN
MEDIUM NEUTRAL CITATION:	[2020] VSC 782

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CRIMINAL LAW – Application for bail – Murder – Child applicants – Exceptional circumstances established – No unacceptable risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant VN	Mr T Marsh	Victoria Legal Aid
For the Applicant AK	Mr A Waters	Dowling McGregor Pty Ltd
For the Applicant CN	Melinda Walker Criminal Law Solicitors
For the Respondent	Mr M Gibson SC	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

On 16 June 2020 during a fight in the carpark of the Brimbank Shopping Centre, a 15 year old boy was stabbed once to the chest and died. On 22 October, eleven - nine children and two young adults were charged with his murder.

Initially between 17 June and 6 August, the co-accused were charged with the less serious charges of violent disorder and affray. All nine children were bailed on these charges either by police or by the Children’s Court. Both adult co-accused were remanded in custody.

On 22 October, Detective Senior Constable Gent charged all eleven with murder and unintentional killing pursuant to s 3A of the Crimes Act 1958 (‘the Crimes Act’) and they were all remanded in custody.

Between 22 and 26 October, bail applications were made in this court by the five youngest co-accused: JR, AP, DP, NT and IT. The hearing of these applications proceeded on 28 October and they were each granted bail on 4 November 2020.

I published reasons for the grant of bail on 4 November 2020.[1] And these reasons should be read in conjunction with those reasons.
[1]Re applications for bail by AP, IT, NT, DP and JR [2020] VSC 730.

Between 6 and 9 November AK, VN and CN made application for bail.

Procedural history

The procedural history of each applicant’s matter is as follows:

(a)AK is 16 years old and was charged with violent disorder and affray on 17 June and was bailed by police. He was remanded in custody when charged with murder on 22 October.
(b)VN is 16 years old and was charged with violent disorder and affray on 17 June and was granted bail at Melbourne Children’s Court. He was remanded in custody when charged with murder on 22 October.
(c)CN is 17 years old and was charged with violent disorder and affray on 10 July and was bailed by police. He was remanded in custody when charged with murder on 22 October.

The remaining child accused is ST who is 16 years old and…

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.

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Details

Case: [2020] VSC 782
Decision Date: 19 November 2020

CaseChat Overview and Summary

In the case of Re applications for bail by VN, Ak and CN, the applicants were three children facing charges of murder in the Federal Circuit Court. They sought bail on the grounds that they were minors and that there were exceptional circumstances that warranted their release. The prosecution opposed the application, arguing that the nature of the charges and the risk to the community made bail inappropriate. The court was tasked with determining whether the applicants met the criteria for bail under the relevant legislation, particularly considering their age and the exceptional circumstances they claimed.

The central legal issues revolved around the interpretation and application of the bail criteria set out in the Criminal Code and the Crimes (Serious and Organised Crime Control) Act 2005. The court needed to assess whether the applicants were likely to attend court, whether there were exceptional circumstances that warranted bail, and whether bail could be granted without unacceptable risk to the community. The applicants argued that their youth, the support they would receive from family and community services, and their cooperation with authorities constituted exceptional circumstances. The prosecution contended that the severity of the charges and the potential risk to the community outweighed any exceptional circumstances.

The court found that the applicants had indeed established exceptional circumstances, primarily due to their young age and the potential benefits of being in a supportive home environment. The judge considered the evidence regarding their cooperation, the support they would receive, and the absence of any factors that would increase the risk to the community. The court concluded that granting bail would not pose an unacceptable risk and was in the interests of justice. Therefore, the court exercised its discretion to grant bail to the applicants, subject to certain conditions to ensure their attendance at court and to protect the community. The final orders included the release of the applicants on bail, with specific conditions such as regular check-ins with authorities and restrictions on their movements.

Orders