Re DF - [2024] VSC 122

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0048

IN THE MATTER of an application for bail
Between:
DF	Applicant
-and-
SENIOR CONSTABLE NICHOLAS HEYNE & ANOTHER	Respondents

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2024
DATE OF JUDGMENT:	18 March 2024
CASE MAY BE CITED AS:	Re DF
MEDIUM NEUTRAL CITATION:	[2024] VSC 122

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CRIMINAL LAW — Application for bail — DF, aged 16, charged with numerous offences, including intentionally causing serious injury, failing to stop after collision, theft of motor car — Police allege DF, while in stolen car with other youths, deliberately drove at cyclist, and then at another a short time later, knocking each rider off bike, thereby causing serious injury, and failed to stop — Incidents in part recorded on mobile phone and CCTV — Police allege that, eight days later, while holding an axe and in company, DF robbed another youth of phone — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of others and of offending — On remand in youth detention for nearly seven weeks — DF, born in Samoa, living with uncle and extended family in Melbourne — Uncle and family overseas when most serious alleged offending occurred — Enrolled in school, but past history of truanting — Casual employment available with uncle on weekends — Assessed by Youth Justice as suitable for supervised bail program — Uncle undertakes to ensure DF, if bailed, taken to and from school, Youth Justice appointments and court hearings, and to report failures to comply with bail — No prior findings of guilt — Expected delay of another six to nine months before contested hearings in Children’s Court — Whether delay likely to exceed any custodial component of sentence, if found guilty — Compelling reason established — Asserted risk not unacceptable — Bail granted on own undertaking with conditions — Bail Act 1977 (Vic), ss 3AAA, 3B, 4, 4AA, 4C, 4D & 4E.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr D. De Witt	Claudia Grimberg Lawyers
For the respondents	Mr A. Albore	Victoria Police, Legal Practice Group

HIS HONOUR:

Summary of alleged offending

“Hit him, hit him! Hit him, hit him!” This is what a passenger in a stolen car urged the driver to do as they neared a cyclist. The bike’s red tail light stood out starkly ahead of them in the dark of the early morn of 23 January on Beach Road in Beaumaris. Someone — there seemed to be at least three on board, but it is not clear which of them — then made the sound five‑year‑olds make when playing with Matchbox toys as the car veered frighteningly close to the cyclist. But, instead of the car swerving away at the last moment — as one might expect, or at least hope — it actually struck the rider. The impact was so hard that the left side of the…

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 DF

Details

AGLC: Re DF [2024] VSC 122
Case: [2024] VSC 122
Decision Date: 18 March 2024

CaseChat Overview and Summary

The case of Re DF involved a 16-year-old defendant charged with several serious offences, including intentionally causing serious injury, failing to stop after a collision, and theft of a motor vehicle. The incidents allegedly occurred in Melbourne, and the case was heard in the Children's Court. DF was remanded in youth detention for nearly seven weeks before the bail application was heard. The central issue before the court was whether there were compelling reasons justifying the grant of bail and whether, if granted, DF would pose an unacceptable risk of endangering the safety or welfare of others or reoffending.

The court examined various factors, including DF's background, the nature and circumstances of the alleged offences, and the potential impact of any delay in the proceedings on the custodial component of the sentence, if DF were to be found guilty. DF, a Samoan-born youth living with his uncle and extended family in Melbourne, had a history of truanting but was currently enrolled in school and had access to casual weekend employment. The Youth Justice assessment deemed DF suitable for a supervised bail program, and his uncle was willing to take on significant responsibilities to ensure DF complied with bail conditions. The court concluded that a compelling reason for granting bail existed and that the risk of reoffending or endangering others was not unacceptable. Consequently, bail was granted subject to specific conditions and DF's own undertaking.

The court's decision was influenced by the lack of prior findings of guilt against DF, the availability of supportive family conditions, and the anticipated delay of six to nine months before the contested hearings. The court considered these factors in light of the Bail Act 1977 (Vic), and ultimately determined that the delay in proceedings was likely to exceed any potential custodial component of the sentence if DF were to be found guilty. The final orders included DF being granted bail on his own undertaking with the specified conditions, pending the resolution of the contested hearings.

Orders