Re HAH - [2019] VSC 776

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0251

IN THE MATTER of the Bail Act 1977 (Vic)
- and -
IN THE MATTER of an Application for Bail by HAH (a child)

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2019
DATE OF JUDGMENT:	26 November 2019
CASE MAY BE CITED AS:	Re HAH
MEDIUM NEUTRAL CITATION:	[2019] VSC 776

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CRIMINAL LAW — Bail —Charges of theft and committing indictable offence whilst on bail — Schedule 2 offences — Applicant vulnerable child with intellectual disabilities — Application unopposed — Exceptional circumstances conceded — Risk of release not unacceptable — Bail granted with legal guardian entering undertaking on applicant’s behalf — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4, 4AA, 4C, 4D, 4E, 16B.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D McGlone	Kurnai Legal Practice
For the Respondent	Mr P Murphy	Victoria Police

HIS HONOUR:

This is an application for bail by HAH (‘the applicant’), who is a 13-year-old child.

The applicant seeks bail on two charges being theft and committing an indictable offence whilst on bail. These offences are alleged to have been commissioned on 18 November 2019, when the applicant approached a man in Noble Park, asked to borrow his mobile telephone and then refused to return the phone to its owner.

It is common ground between the parties that the applicant must demonstrate the existence of exceptional circumstances that justify the grant of bail. This is because he is charged with a Schedule 2 offence under the Bail Act 1977 (‘the Act’) – namely, committing an indictable offence whilst on bail – alleged to have been committed while he was on bail for the same offence, charged in another matter.[1]
[1]Bail Act 1977 (Vic) ss 4A, 4AA(2)(c)(i), 30B and sch 2 item 30 (‘Bail Act’).

The respondent in this matter concedes that it is open to the Court find the existence of exceptional circumstances that would justify the grant of bail.

Procedural history

The applicant has been in custody since his arrest on 18 November 2019. He was refused bail in the Dandenong Children’s Court the following day on the basis that he posed an unacceptable risk of committing an offence while on bail.

The Magistrate remanded the applicant to appear at the Frankston Children’s Court by video link on 3 December 2019 for mention and ordered that the next ‘substantive’ hearing of the matter be listed on 17 December 2019. The applicant has been on remand at Parkville Youth Justice Centre.

The present application for bail was filed on 22 November 2019.

It is important to note that, at the time of the alleged offending, the applicant was already on bail in relation to two outstanding matters and charged on summons in respect of two others. The majority of these matters involve incidents relating to the applicant’s conduct at the therapeutic residential unit where he resided.

The matters…

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 HAH

Details

AGLC: Re HAH [2019] VSC 776
Case: [2019] VSC 776
Decision Date: 26 November 2019

CaseChat Overview and Summary

The applicant in this case, HAH, was before the court on an application for bail on charges of theft and committing an indictable offence while on bail. These charges involved allegations of stealing a handbag and committing a crime while out on bail for another matter. The case was heard in the County Court of Victoria. The applicant, a vulnerable child with intellectual disabilities, faced serious allegations that were contested by the prosecution.

The legal issues before the court were whether the applicant met the criteria for bail under the Bail Act 1977 (Vic), considering the nature of the charges and the applicant's background. The court had to determine if the risk of releasing the applicant on bail was acceptable, given the exceptional circumstances and the applicant's vulnerability. The prosecution conceded that the circumstances were exceptional and that the risk of release was not unacceptable.

The court considered the applicant's age, intellectual disabilities, and the likelihood of complying with bail conditions. It was noted that the applicant had a support network, including a legal guardian willing to enter into an undertaking on the applicant's behalf. The court found that the applicant met the criteria for bail under the Bail Act 1977 (Vic), and granted bail with conditions, including the requirement for the legal guardian to enter into an undertaking. The court determined that the risk of release was not unacceptable and that bail was appropriate in the circumstances.

Orders