Re BA - [2018] VSC 665

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2018 0278

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by BA

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2018
DATE OF JUDGMENT:	2 November 2018
CASE MAY BE CITED AS:	Re BA
MEDIUM NEUTRAL CITATION:	[2018] VSC 665	Second revision 9 November 2018

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CRIMINAL LAW – Bail – 14 year old applicant - Aggravated home invasion and other charges – Young age of applicant an important consideration – Requirement to show existence of exceptional circumstances – Whether exceptional circumstances established – Whether unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3A, 3B, 4, 4AA, 4A and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Swiney	Victoria Legal Aid
For the Respondent	Mr A Austin	Legal and Prosecutions Specialists Branch, Victoria Police

HIS HONOUR:

Introduction

The applicant is a 14 year old child who identifies as being an Aboriginal person. He applies for bail in respect of charges he faces of aggravated home invasion, aggravated burglary and attempted aggravated burglary arising from incidents which took place on 7 August 2018. It is agreed between the parties that as the offence of aggravated home invasion is a Schedule 1 offence under the Bail Act 1977 (‘the Act’), bail must be refused unless I am ‘satisfied that exceptional circumstances exist that justify the grant of bail.’[1]
[1]Bail Act 1977, s 4A(1A).

The applicant was arrested on these charges on 11 August 2018. Two previous applications for bail in the Children’s Court have failed, the first because the applicant failed to establish exceptional circumstances, and the second because new facts and circumstances were not established. The applicant has now been in custody 83 days, up to and including today.

The alleged offending

The applicant has a troubling recent history of offending which I will turn to later in these reasons, but the offending now alleged against him represents a substantial step up in seriousness.

At about 2:00am on the morning of Tuesday 7 August 2018, Bryan Matthew, a 60 year-old invalid pensioner who had had a kidney transplant the previous year, and his 61 year-old wife Janet, were asleep in their home in Corio when Mrs Matthew was awoken by the noise of banging at the front door of the house. She turned on the light and almost immediately the front door was kicked in by a co-offender of the applicant named DR. It is alleged that DR, another co-offender named AA and the applicant all entered the premises. Mrs Matthew saw them upon their entry and noticed that one and possibly two of the intruders were carrying items which looked like Tasers.

The intruders confronted Mrs Matthew, the applicant repeatedly screaming at her, ‘Where are the keys?’, in apparent reference to the keys to their motor vehicle which was parked outside. The applicant then rummaged…

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 BA

Details

AGLC: Re BA [2018] VSC 665
Case: [2018] VSC 665
Decision Date: 2 November 2018

CaseChat Overview and Summary

A 14-year-old boy, who will be referred to as "BA", was the subject of an application for bail in the Children’s Court of New South Wales. The applicant was charged with aggravated home invasion, among other charges, and faced the prospect of being remanded in custody. The court had to determine whether bail should be granted to BA, taking into account his age, the nature of the charges, and the necessity of ensuring public safety.

The legal issues the court needed to resolve included whether BA’s young age constituted an exceptional circumstance warranting bail and whether there were any exceptional circumstances that warranted a departure from the general principle that a child under 14 should be kept in custody. Additionally, the court had to consider whether there was an unacceptable risk that BA would reoffend if released on bail and whether he would comply with any bail conditions. The court’s analysis hinged on the provisions of the Bail Act 1977, particularly sections 1B, 3A, 3B, 4, 4AA, 4A, and 4E.

The court found that BA’s youth and the severity of the charges did not, in themselves, constitute exceptional circumstances warranting bail. The court further determined that there was an unacceptable risk that BA would reoffend if released on bail, and that he would not comply with bail conditions. The court concluded that keeping BA in custody was necessary to protect the public and ensure he would appear for his trial. Therefore, the application for bail was refused.

No further orders were made by the court.

Orders