Re Ha (a pseudonym) - [2021] VSC 443

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0196

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by HA

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2021
DATE OF JUDGMENT:	27 July 2021
DATE OF REASONS:	28 July 2021
CASE MAY BE CITED AS:	Re HA (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VSC 443

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CRIMINAL LAW – Bail – Fifteen-year-old, intellectually disabled Indigenous applicant for bail – History of multiple breaches of bail despite intensive and long-term Youth Justice involvement – Increasing danger to himself and community – Exceptional circumstances conceded by respondent – Unacceptable risk made out by respondent – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4, 4AA, 4A, 4D, 4E - Re HA (a pseudonym) [2021] VSCA 64 – Re HA (a pseudonym) [2021] VSC 96.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Radzaj	Kurnai Legal Practice
For the Respondent	Ms A Buzo	Victoria Police

HIS HONOUR:

INTRODUCTION

The applicant in this bail application is a 15-year-old intellectually disabled Indigenous boy. He has been granted supervised bail on numerous occasions and repeatedly breached his bail.

On 10 March 2021, the Court of Appeal granted him bail in relation to 18 alleged offences including attempted armed robbery, assault with a weapon, burglary, motor vehicle theft, driving offences and multiple counts of committing an indictable offence whilst on bail.[1] Despite the considerable risk of the applicant reoffending if released on bail, the Court found that the applicant was not an unacceptable risk.[2] Central to that conclusion was that it was unlikely that he would receive a sentence of detention from the Children’s Court if found guilty of the alleged offences.[3] The Court indicated, however, that bail is not automatic in such circumstances, saying:

The [Bail] Act does not direct that bail must be granted in a case in which the length of time that an accused is likely to spend in custody if bail is refused would exceed the likely sentence that would be imposed should the accused be found guilty. Rather, s 3AAA(1)(k) and (l) specify that as a consideration which must be taken into account as part of the ‘surrounding circumstances’.[4]

[1]Re HA (a pseudonym) [2021] VSCA 64.

[2]Or more precisely that it was not reasonably open to Tinney J, who had refused bail (Re HA [2021] VSC 96), to find that the applicant was an unacceptable risk.

[3]Having regard to a number of matters, including the seriousness of the alleged offences, his limited antecedents, his difficult childhood and his intellectual disability.

[4]Re HA (a pseudonym) [2021] VSCA 64 [62].

On 13 July 2021 the applicant was again arrested and remanded in custody in respect of 14 alleged offences committed between 28 June 2021 and 13 July 2021, including an attempted carjacking (informant Whelan) and two counts of reckless conduct endangering serious…

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 Ha (a pseudonym)

Details

AGLC: Re Ha (a pseudonym) [2021] VSC 443
Case: [2021] VSC 443
Decision Date: 27 July 2021

CaseChat Overview and Summary

In the case of Re Ha (a pseudonym), the Victorian Court of Appeal heard an appeal against the refusal of bail to a fifteen-year-old, intellectually disabled Indigenous youth. The applicant had a history of multiple breaches of bail conditions despite significant involvement with the Youth Justice system. The court's task was to review the lower court's decision on the grounds of the applicant's danger to himself and the community, as well as the exceptional circumstances argued by the respondent.

The legal issues before the court involved interpreting the Bail Act 1985 to determine if the lower court's refusal of bail was justified. Specifically, the court had to consider whether the risk posed by the applicant to the community and himself was unacceptable, and if exceptional circumstances existed that warranted denying bail. The applicant's history of non-compliance with bail conditions and increasing danger to the community were central to the argument.

The Court of Appeal found that the lower court was correct in its assessment. The risk posed by the applicant was deemed unacceptable given his history of breaching bail and his potential to cause harm to himself and others. The exceptional circumstances conceded by the respondent, including the applicant's intellectual disability and background, did not outweigh the significant risk. The court upheld the lower court's decision, confirming that the refusal of bail was justified under the relevant sections of the Bail Act.

The final orders of the court were to dismiss the appeal, confirming the lower court's decision that the applicant's bail should remain refused. The court emphasised the importance of protecting the community and ensuring the safety of the applicant himself.

Orders