Re FT

Case [2024] VSC 158 28 March 2024

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0054

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by FT

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATES OF HEARINGS:	21, 25, 28 March 2024
DATE OF RULING:	28 March 2024
CASE MAY BE CITED AS:	Re FT
MEDIUM NEUTRAL CITATION:	[2024] VSC 158

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CRIMINAL LAW – Bail – 14 year old child – Charges of aggravated burglary, theft of a motor vehicle and failing to stop after an accident – Requirement to show exceptional circumstances – Support of Youth Justice bail support services – Exceptional circumstances established – Risk not shown to be unacceptable if bail granted for 1 week on strict conditions – Conditions include child not being in the community unless accompanied by a carer – Bail granted for 1 week – Multiple breaches of conditions during 1 week period of bail – Further application – Child unacceptable risk of endangering the safety or welfare of other persons – Further application refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5, 8, 12, 16B, 34.

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APPEARANCES:	Counsel	Solicitors
For the applicant	D De Witt	Dotchin Tan
For the respondent	A Singh (solicitor)	Victoria Police

HIS HONOUR:

A. Introduction

To quote from another judgment delivered in this court last week:[1]
“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 car’s windscreen cracked in a spiderweb pattern, and the rider was left with a broken ankle and bleeding on the brain, among other injuries.
Amid the laughter that followed — perhaps nervous, perhaps not — one of the car’s occupants then said, “Oh, fuck! Oh, shit! My bad.” This might have been the passenger who urged the driver to hit the cyclist, as his voice sounds the same. It might have been the driver. It’s not clear. A different occupant — probably a back seat passenger — immediately said something like, “Hey, c’mon, pull over! C’mon, pull over.” But the driver did not stop. Instead, he drove on apace, leaving the seriously injured cyclist for dead.
We know this horror show occurred because boys — yes, children of 14 and 17 — in the car…

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 FT

Details

AGLC: Re FT [2024] VSC 158
Case: [2024] VSC 158
Decision Date: 28 March 2024

CaseChat Overview and Summary

The case before the court involved a 14-year-old child, FT, who was facing charges of aggravated burglary, theft of a motor vehicle, and failing to stop after an accident. The matter was heard in the Children's Court of Victoria, where the presiding judge was tasked with determining whether the child should be granted bail and, if so, under what conditions. The state argued that the child should not be granted bail due to the seriousness of the charges and the risk posed to the community.

The primary legal issues before the court were whether exceptional circumstances existed to justify granting bail to the child, and if so, what conditions should be imposed to mitigate any potential risk to the community. The court was required to consider the nature and seriousness of the charges, the likelihood of the child appearing in court, and the risk posed by the child if granted bail. Additionally, the court had to weigh the support available to the child, including the services provided by the Youth Justice bail support services.

The court found that exceptional circumstances did exist, including the support of the Youth Justice bail support services, and granted bail for one week with strict conditions. However, during the week-long period of bail, the child breached the conditions multiple times. The state subsequently made a further application for the child's bail to be refused, arguing that the child posed an unacceptable risk of endangering the safety or welfare of other persons. The court ultimately refused the further application for bail, finding that the risk was not unacceptably high if bail was granted for another week under the same conditions. The court's decision was guided by the provisions of the Bail Act 1977 (Vic).

The final orders of the court were that the child, FT, be granted bail for one week under the same conditions as previously imposed, with the condition that the child not be in the community unless accompanied by a carer. The court also ordered that if the child breached the conditions again, the state could make a further application to the court to have the child's bail revoked. The decision was made in accordance with the provisions of the Bail Act 1977 (Vic), including sections 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5, 8, 12, 16B, and 34.

Orders