Re Im
[2023] VSC 360
•5 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0042
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an Application for Bail by IM
BETWEEN:
| IM | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2023 |
DATE OF JUDGMENT: | 5 April 2023 |
DATE OF REASONS: | 26 June 2023 |
CASE MAY BE CITED AS: | Re IM |
MEDIUM NEUTRAL CITATION: | [2023] VSC 360 |
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CRIMINAL LAW — Application for bail — Child applicant — Charges of murder and kidnapping — Exceptional circumstances — Circumstantial case — Prospect of significant delay — Special vulnerability — Exceptional circumstances shown — Unacceptable risk — No criminal history — Parity — Co‑accused granted bail — Risk rendered acceptable with appropriate bail conditions — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | M McGrath | Slades & Parsons |
| For the Respondent | J Johnston | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by IM [‘the applicant’]. He is a 17‑year‑old child with no criminal history, who is currently in custody for the first time. He has been on remand since 15 November 2022, after being arrested by Detective Senior Constable Thomas Stadler and charged with the murder of Khalid Mahat [‘the deceased’], and the kidnapping of Abdulahi Abdi [‘the complainant’], alleged to have occurred on 16 October 2022 [‘the Stadler matter’]. He has remained in custody since that date.
At the time of the alleged offending in the Stadler matter, the applicant was not subject to charges in any other matter. However, on 14 December 2022, while on remand in the Stadler matter, the applicant was charged on summons by Detective Senior Constable Jarrad Tucker with the following offences [‘the Tucker matter’], relating to events on 24 June 2022 (predating the alleged offending in the Stadler matter):
(a) armed robbery (two charges);
(b) false imprisonment (two charges);
(c) intentionally causing injury (two charges); and
(d) affray.
The applicant remains on summons in the Tucker matter, which is next listed in the Heidelberg Children’s Court on 29 March 2023 for further mention.
On 14 March 2023, the applicant filed an application for bail in this court. The Stadler matter is next listed in the Melbourne Children’s Court for committal mention on 5 April 2023, at which time the prosecution intends to apply to uplift the kidnapping charge, and have the matter proceed as a joint committal hearing with the adult co‑accused. A tentative, nine‑day joint committal hearing has been set to commence on 13 June 2023 in the Melbourne Magistrates’ Court.
The prosecution cases
The Stadler matter
The applicant has eight co‑accused in the Stadler matter. They are:
(a) SQA, who is charged with murder and kidnapping, and is currently on bail.[1] He was 16 years old at the time of the alleged offending, and had no criminal history.
[1]SQA was granted bail in the Supreme Court on 7 March 2023: Re SQA; Re MG [2023] VSC 359.
(b) MG, who is charged with murder and kidnapping, and is currently on bail.[2] He was 17 years old at the time of the alleged offending, and had no criminal history.
[2]MG was granted bail in the Supreme Court on 7 March 2023: Re SQA; Re MG [2023] VSC 359.
(c) YA, who is charged with murder and kidnapping, and is currently on remand. He was 18 years old at the time of the alleged offending, and had no criminal history.
(d) AF, who is charged with murder and kidnapping, and is currently on remand. He was 19 years old at the time of the alleged offending, and had no criminal history.
(e) ZHA, who is charged with murder and kidnapping, and is currently on remand. He was 19 years old at the time of the alleged offending, and had no criminal history.
(f) BM, who is charged with murder and kidnapping, and is currently on bail.[3] He was 17 years old at the time of the alleged offending, and had no criminal history.
(g) SMA, who is charged with kidnapping, and is currently on bail.[4] He was 18 years old at the time of the alleged offending, and had no criminal history.
(h) AY, who is charged with kidnapping, and is currently on bail.[5] He was 16 years old at the time of the alleged offending, and had no criminal history.
[3]BM was granted bail in the Supreme Court on 14 December 2022: Re BM (Supreme Court of Victoria, Hollingworth J, 14 December 2022) (not published).
[4]SMA was granted police bail on 8 November 2022.
[5]AY was granted bail in the Melbourne Children’s Court on 4 November 2022.
Background
At 1:24am on 16 October 2022, a white Toyota Corolla GoGet rental car arrived and parked near the front of the applicant’s parents’ house in Bellfield.
The applicant’s sister saw five males standing near the car and two approaching the house wearing balaclavas and carrying machetes. It is believed that the complainant and the deceased were amongst this group of males.[6] After the males saw the applicant’s sister, they ran back to the car — one making threatening motions with his machete — and the car drove away.
[6]Noting that CCTV from earlier that morning depicted them both in the white Toyota at a service station in Reservoir.
The applicant’s sister called 000 and reported the incident. Shortly after, she observed a red Toyota Yaris drive into the street, perform a U‑turn and leave without stopping. This vehicle is registered to the sister of one of the co‑accused.
At 1:37am, while responding police officers were en route to the applicant’s parents’ house, they observed the white Toyota travelling westbound on Bell Street, approximately 500 metres from the applicant’s parents’ house. Shortly after, the officers observed the red Toyota travelling at speed northbound on Liberty Parade in Heidelberg West. Police followed the red Toyota to an address on Oriel Road in Heidelberg West, and spoke to the occupants, who were identified as three of the co‑accused. Shortly after, the applicant, the three co‑accused, and an unrelated third person arrived at the address in a black Kia Cerato.
The applicant exited the Kia and spoke to police officers, informing them that his sister had called 000 to report the incident at his parents’ house in Bellfield. He said that a group of males had arrived with weapons, and that he had fled through the backyard and was chased for a time by the males, before losing them. After the applicant finished speaking, one of the co‑accused was overheard whispering “before these cunts get too far away from us”. The males returned to their respective cars and left.
Over the ensuing hours, through telecommunications records and CCTV, the accused individuals were identified as being in the same general vicinity as one another.
At 3:19am, some of the accused individuals attended an address on Morotai Parade in Heidelberg West in the red Toyota. CCTV from the area depicted them jumping a fence to gain access to the property, and one of them passing another a large knife with a black handle and silver blade.
Later that morning, the owner of the Morotai Parade property arrived at the address and discovered keys to the red Toyota on the property. She reported it to police, and police attended to collect the keys.
At 11:08am, the co‑accused returned to the address, ostensibly to locate the missing keys, but were confronted by the property owner who used her mobile phone to record her interaction with them. Around 12:38pm, two of the accused individuals attended Heidelberg Police Station to retrieve the missing red Toyota keys.
Between 12:45pm and 1:40pm, telecommunications data placed the phones of the accused at a number of locations together.
The alleged offending
It is the prosecution case that the following alleged events took place as retaliation for the events that took place at the applicant’s parents’ house earlier in the day.
Incident one: Kidnapping the complainant
At 1:44pm, the red Toyota parked on the complainant’s street in Reservoir. Three of the accused were depicted on CCTV exiting the car approximately 60 metres from the complainant’s house and placing hoods over their heads. The group then travelled in convoy (by foot and car respectively) to the complainant’s house.
It is the complainant’s evidence that, around this same time, he exited his house and was approached by five males, three wearing balaclavas and the others wearing another form of face covering. One of the males yelled at the complainant “gimme the key card” (in reference to the key to the white Toyota) and “gimme your phone or I’ll fucking kill you, I’ll stab you in the neck”. During the confrontation, a knife was held against the complainant’s back. He handed over the key card to the white Toyota and his phone, before being forced into the back seat of the white Toyota.
At approximately 2:00pm, the Toyotas left the complainant’s house and travelled to the applicant’s sister’s street in Reservoir. The applicant and one of the co‑accused were present at the house and entered the red Toyota when it arrived.
At 2:23pm, the Toyotas drove to Bundoora Park. The complainant was told to get out of the white Toyota upon arrival, and was then punched, slapped and laughed at by the group. The complainant observed three kitchen knives being passed between the group, and a hammer with a red and black handle. The hammer was used to strike the complainant on the back of his right shoulder, before he was forced into the boot of the white Toyota. A witness observed the incident. Between 2:38pm and 2:45pm, the Toyotas left Bundoora Park.
Incident two: Murder of the deceased
Around 2:50pm, the Toyotas arrived at Yulong Park in Bundoora. The complainant was taken out of the boot of the white Toyota and assaulted by the applicant and the co‑accused. They punched, slapped and pushed the complainant, while taking it in turns to stand on the bonnet of the white Toyota and kick the complainant to the head.
At 2:58pm, the complainant was forced to call the deceased and arrange to meet him at a house in Heidelberg West [‘the Heidelberg West address’] (under the guise that the complainant would be bringing the deceased the white Toyota). The deceased was unaware that the complainant was being held against his will, and proceeded to make his way to the Heidelberg West address.
At 3:33pm, the Toyotas travelled in convoy to the Heidelberg West address, with the complainant still in the boot of the white Toyota. The complainant recalls the white Toyota slowing down, an occupant saying “that’s him”, and the car accelerating at speed towards the deceased, who was standing in the front yard of the Heidelberg West address. The complainant was able to partially observe the scene from the boot of the white Toyota.
The woman living at the Heidelberg West address was inside her house at the time. She had been speaking to the deceased inside earlier, but he had exited the house after hearing a horn honking out the front. She looked through her window and saw a car racing towards the house, before hearing a loud bang and feeling the house shake. The white Toyota had accelerated directly at the deceased, narrowly missing him, before crashing over a metal picket fence and into the house.
The red Toyota arrived shortly after the white Toyota and parked out the front of the house. The woman living at the Heidelberg West address observed four occupants exit from each of the cars (eight people in total) carrying long knives. She described all occupants as “kids” and saw one of them stab the deceased in the neck and return to the red Toyota.
It is the prosecution case that the applicant and the co‑accused were all involved in a fatal attack against the deceased out the front of the Heidelberg West address. During that attack, the deceased was stabbed in excess of 10 times, inclusive of fatal stab wounds to the side of his neck and his chest. He also received blunt force trauma to his head.
Afterwards, all accused fled the scene in the red Toyota.
Emergency services arrived shortly after, and found the deceased in cardiac arrest. He died at the scene.
Police examined the scene and seized several items, including two knives.
Post‑offence conduct and investigation
The applicant and the co‑accused drove in the red Toyota to Coburg North. There, they exited the car and walked to Edgars Creek, where they exchanged clothing and threw items of clothing and a knife into the creek.
At 10:49pm, the red Toyota was driving to Caddy Court in South Morang — approximately 75 metres from YA’s house — where YA dumped clothing in a storm water drain and returned home.
Later, clothing worn by MG was located and retrieved from Edgars Creek and clothing belonging to AF was found in the Caddy Court storm water drain. The red Toyota was also seized from Caddy Court, and a hammer with a black and red handle was located inside with the applicant’s fingerprints on it.
Crime scene analysis of the white Toyota revealed a large amount of blood on the rear left quarter panel. Fingerprints from the co‑accused were located on or within the car.
On 17 October 2022, an autopsy was conducted and the deceased’s cause of death was determined to be a combination of blunt force trauma to the head and multiple stab wounds.
Arrest, interview and charge
On 15 November 2022, the applicant was arrested at the Tullamarine Airport after returning to Australia from a trip to Somalia. He made no comment during a record of interview, and was charged and remanded in custody.
The Tucker matter
Background
There are five co‑accused in this matter: the applicant, HH, HM, SQA, BM and AY (the latter three of whom are also co‑accused in the remand matter).
There are seven alleged victims in the matter. Only two have made statements.
The prosecution case
At 5:00pm on 24 June 2022, the victims attended an abandoned building in Preston to socialise. Shortly afterwards, the six accused arrived. Two of the victims were sitting out the front, and were directed inside by the accused individuals, five of whom were carrying machetes.
Once inside the building, the victims were directed to sit against a wall, while three of the co‑accused stood guard at the entrance holding machetes. The victims were searched and asked whether they had any money or phones, while having machetes pointed at them.
Shortly after, another victim, ZS, arrived. He observed the situation and attempted to leave, but was punched to the head and told to sit down. A number of items were taken from him (including a jacket, AirPods, and necklace), before he and another victim were told to pull their pants down, so that the accused individuals could ensure they were not concealing any valuable items.
Afterwards, one of the co‑accused asked ZS if he wanted to get stabbed. ZS extended his leg to protect himself, and was hit twice with a machete, to his leg and shoes. The accused told ZS to pull his pants down and threatened that — if ZS was not bleeding — he would be stabbed.
As this was happening, one of the victims was placed against a wall and had a machete held to his neck. He was patted down and asked what items he had on him, before having his AirPods, a necklace, and a $20 note taken from him. He was then punched in the face.
At 5:16pm, the accused left the building.
Arrest, interview and charge
On 19 August 2022, police searched the applicant’s home in Bellfield. No items were seized, but the applicant was taken to Mill Park Police Station for interview. During the interview, the applicant said that he did not recall what he was doing on the day of the incident, but otherwise answered “no comment” to questions put to him.
On 14 December 2022, while on remand in the Stadler matter, the applicant was charged on summons in this matter.
The applicable legislation
Guiding principles
When interpreting and applying the Bail Act 1977 [‘the Act’], the court is required to have regard to the guiding principles set out in section 1B.[7] Section 1B provides:
[7]The Act, s 1B(2).
(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Determination in relation to a child
Because the applicant is a child, the court must also consider the following matters outlined in section 3B(1) of the Act:
(a)the need to consider all other options before remanding the child in custody; and
(b)the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c)the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e)the need to minimise the stigma to the child resulting from being remanded in custody; and
(f)the likely sentence should the child be found guilty of the offence charged; and
(g)the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
The court may consider any recommendation or information contained in a report by a bail support service.[8]
[8]Ibid s 3B(2).
The exceptional circumstances test
Because the applicant is accused of the Schedule 1 offence of murder,[9] his bail application must be refused unless he satisfies the court that exceptional circumstances exist that justify a grant of bail.[10] In making this determination, the court must have regard to the relevant surrounding circumstances, a non‑exhaustive list of which is set out in section 3AAA(1).[11]
[9]Ibid sch 1, item 2.
[10]Ibid ss 4AA(1), 4A(1A)–(2).
[11]Ibid ss 4(1A)–(3).
The unacceptable risk test
If satisfied to the requisite standard that the exceptional circumstances test has been met, the court must still refuse bail to the applicant if (again having regard to the surrounding circumstances in section 3AAA(1)) it is satisfied by the respondent that the applicant poses an unacceptable risk of any of the matters set out in section 4E(1)(a) of the Act, and that such a risk cannot be moderated by conditions of bail.[12]
[12]Ibid ss 4A(4), 4D and 4E.
The applicant’s contentions
The applicant relied on a seven‑page written submission and supplemented these with oral argument.
Exceptional circumstances
As to the exceptional circumstances test, the applicant submits the following matters, in combination, demonstrate exceptional circumstances that justify the grant of bail.
The applicant’s personal circumstances
The applicant is 17 years old. He has an older sister and a younger brother, two older half‑sisters and an older half‑brother. The applicant’s father first came to Australia in 1993, and would regularly travel between Australia and Somalia. He married the applicant’s mother in 2001, who later gave birth to the applicant’s sister and the applicant. In 2006, when the applicant was an infant, the applicant’s father moved the family to Australia.
Prior to his remand, the applicant was undertaking Year 11 VCE studies and living between his parents’ house in Bellfield, and his sister’s house in Reservoir. His father was living in Somalia, taking care of his own father there. However, the applicant’s father has since returned to Australia.
Special vulnerability
As the applicant is 17 years old, he is a child for the purposes of the Act. This enlivens the mandatory considerations in section 3B(1). It is submitted that the applicant’s status as a child is a forceful factor in establishing exceptional circumstances that justify the grant of bail. It is submitted further that it is in the community’s interest for the applicant (as a young person) to be released from custody due to the detrimental effects of detention on children. The applicant contends that all reasonable steps must to be taken to avoid his ongoing detention.
Nature and seriousness of the alleged offending
It is accepted that the charge of murder is of the utmost seriousness.
Strength of the prosecution case
However, despite the seriousness of the charges against the applicant, he submits the charges are circumstantial and put on a complicity basis, and that there is no evidence of any of the specific acts alleged against the accused. It is contended that the applicant has a reasonable prospect of acquittal.
Criminal history, previous bail compliance and outstanding matters
The applicant has no criminal history, no adverse bail history, and was not charged in any outstanding matters at the time of the alleged offending. It is acknowledged, however, that the applicant has since been charged on summons in the Tucker matter.
Family support and stable accommodation
It is submitted that the applicant is close with and supported by his family, and that he will have suitable accommodation at the family home in Bellfield if bail is granted. The applicant’s family have visited him regularly since his remand, and have daily contact with him via Zoom or telephone.
The applicant’s father, Abdikairim Ali, was not in Australia at the time of the alleged offending, but has since returned and proposes to live with and monitor the applicant if bail is granted. Counsel for the applicant called evidence from Mr Ali on this point.
Mr Ali gave evidence that he is a taxi driver, and works around five shifts a week. Two of these shifts occur during weekend nights and the remainder during the weekdays. Mr Ali is also involved in a local not‑for‑profit organisation as a board member. He confirmed that the applicant would live in the family home with his mother and siblings if granted bail. Mr Ali also stated that he would be the one to drive the applicant to and from school. He undertook that, in the event the applicant was granted bail on conditions, he and other members of the family would be prepared to immediately call the informant should they become aware of the applicant breaching any bail conditions. Mr Ali confirmed he understood the serious nature of providing an undertaking to the court.
Ties to the jurisdiction
It is submitted that the applicant has strong ties to the jurisdiction. He has lived in Australia since his infancy, is an Australian citizen, and his parents and siblings also live in Australia.
It is acknowledged that the applicant left Australia to travel to Somalia on 17 October 2022, the day after the alleged offending occurred in the Stadler matter. However, it is contended that:
(a) the applicant’s father was based in Somalia at the time, in the context of caring for his own father (the applicant’s grandfather) who was suffering from a serious medical condition;
(b) the applicant, while in Somalia, was informed by his sister that police attended their home enquiring after him;
(c) the applicant made no attempts to remain in Somalia after being informed that police were trying to locate him, but instead changed his return ticket to arrive back in Melbourne on 15 November 2022; and
(d) the applicant’s passport has been seized by Victoria Police.
Education
Prior to his remand, the applicant was undertaking Year 11 VCE studies at Charles La Trobe College, Macleod campus, with a view to entering the building industry. He has continued his studies while on remand, and if bail is granted it is proposed that he will return to school at the Charles La Trobe College East Preston campus [‘The Pavilion School’], noting that one of the co‑accused is currently enrolled at the Macleod campus. The applicant’s enrolment at The Pavilion School is confirmed in an email from Josie Howie, Principal, dated 23 March 2023. In that email, Ms Howie states that the school is aware of the applicant’s situation, and that the applicant will be supported by a teacher, youth worker, and integration aid if he is to transition back to the school. The school has prepared a timetable for the applicant’s return, commencing from 29 March 2023.
Conditions in custody
The applicant is in custody for the first time. It is submitted that the detrimental effects of custody on a young person are well established.
It is noted that, since his remand, the applicant has been practising his Islamic faith (praying five times daily and receiving visits from a sheik), maintaining regular contact with family, engaging in educational activities and courses (including an anger management course), and attending the gym.
Availability of treatment and bail support services
By way of a report dated 24 March 2023, the applicant has been assessed as unsuitable for Youth Justice supervised bail on the basis that there is presently “limited information” available regarding the safety concerns for the applicant and others in the community. Youth Justice are of the opinion that this “limits the level of supervision and safety/risk management planning that Youth Justice and outreach community support services can provide to mitigate this risk”.
On this application, the applicant called Chris Saxton, a case manager for North West Metropolitan Youth Justice and the author of the report, to give evidence.
Mr Saxton gave evidence that he had been provided information from Youth Justice staff at Malmsbury Youth Justice Precinct regarding safety concerns relevant to the applicant. He suggested that staff at Malmsbury had held concerns for the applicant’s safety in the custodial setting, given the presence of the applicant’s co‑accused at Malmsbury. However, when questioned further about this, Mr Saxton clarified that given a number of the co‑accused had been granted bail, there had been no further concerns about the applicant’s safety at Malmsbury.
Mr Saxton also indicated that the Youth Justice staff were concerned about the applicant’s safety if he were to be discharged into the community, due to possible retribution from the victim’s family. Although Mr Saxton admitted that he did not know the specifics of the concerns held by Youth Justice, he opined that there was a risk the applicant could strike back against the victim’s family, prompting a “spiral” into “back and forth retribution”. However, under further questions, Mr Saxton subsequently stated that he did not intend for his report to convey that the applicant presented a risk to other people.
Evidence was also given that the applicant had engaged appropriately with Youth Justice and attended in person supervision appointments and had presented as polite and respectful. In Mr Saxton’s view, the applicant’s family home would serve as appropriate accommodation if he was to be bailed, and there were no concerns about who he would live with at this address.
Counsel for the applicant submit that, in light of Mr Saxton’s evidence, the applicant’s assessment as “unsuitable” for Youth Justice supervised bail does not prevent the court from granting him bail, including with conditions relating to Youth Justice supervision. On this point, the applicant drew attention to the fact that a number of his co‑accused had also been found to be unsuitable for supervised bail by Youth Justice, but this had not been a barrier to them being granted bail.
Delay and likely sentence
It is submitted that there will be a significant delay in reaching trial. The applicant has been in custody since his arrest on 15 November 2022, and the matter is next listed on 5 April 2023 for committal mention in the Children’s Court. There is then a nine‑day joint committal proceeding scheduled to commence in the Magistrates’ Court from 13 June 2023.
It is also noted that, as matters stand, the hand up brief is incomplete — with numerous outstanding statements. It is also noted that the matter is complicated by the number of accused persons involved. It is submitted, in all of the circumstances, that a trial is unlikely to be listed before 2024, and that the delay could have significant detrimental consequences for the applicant, given the effects of custody on young persons. However, it is conceded that, if found guilty, the applicant will likely face a significant sentence of imprisonment.
Parity
It is noted that a number of co‑accused have been granted bail in this matter. Three (BM, SQA and MG) are facing the same charges as the applicant in the Stadler matter. Two of them (BM and SQA) are also co‑accused in the Tucker matter. It is submitted that the principle of parity is relevant to the consideration of whether exceptional circumstances exist that justify the grant of bail.
Unacceptable risk
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of strict conditions of bail, including:
(a) in relation to residence — a static address, curfew, presenting to police during curfew hours and notifying the informant of any intended change of address;
(b) reporting to police regularly;
(c) engaging and complying with Youth Justice;
(d) not contacting any co‑accused or witnesses (with the exception of the informant and the applicant’s family members);
(e) in relation to mobile phone usage — not possessing more than one phone, providing the informant with the phone number and IMEI of the phone and presenting said phone to the police for inspection upon reasonable request;
(f) in relation to travel — surrendering his passport and not leaving the State of Victoria or attending international departure points; and
(g) judicial monitoring.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not discharged the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail, and that he poses an unacceptable risk of each of the four matters in section 4E(1)(a) of the Act.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Exceptional circumstances
Strength of the prosecution case
It is not disputed that the case against the applicant is circumstantial, however, it is the prosecution’s position that it is a strong case supported by telecommunications data, fingerprint evidence, CCTV footage, witness statements and various exhibits (including electronic devices, and a weapon and clothing alleged to have been used and worn during the alleged offending). It is noted that there is still important outstanding forensic analysis being undertaken in relation to the exhibits, which may establish a direct link to the applicant.
At the hearing, the respondent highlighted certain points of distinction between this applicant and the other co‑accused who have been granted bail. In particular, the respondent submitted that:
(a) the event that began the series of events on 16 October 2022 was distinctly personal to the applicant, in the sense that it was his house that was the subject of the intimidation by the occupants of the white Toyota (which included the complainant and the deceased). Given this, the respondent submits that the animus or motive for the reprisals against the complainant and deceased is particularly acute in relation to the applicant; and
(b) whilst the applicant is not alleged to have been physically present when the complainant was abducted and kidnapped (with the prosecution case being that he was collected by the red Toyota from a nearby address), the complainant’s evidence is one of the males held a hammer with a black and red handle during the afternoon. This hammer was subsequently found in the red Toyota and was found to have the applicant’s fingerprints on it. Further, the autopsy report indicated that there was a blunt force trauma injury on the forehead of the deceased consistent with a blow from a hammer.
Parity
While the respondent accepts that parity is a relevant consideration, in light of the above points of distinction, it is submitted that its force is somewhat lessened. The respondent submits that parity is merely one consideration of many that go to the overall merit of the application for bail.
Family support and stable accommodation
The respondent submits that the applicant’s parents are not likely to be able to exercise any control over him to comply with bail conditions, if bail is granted.
Delay and likely sentence
In response to the applicant’s submissions regarding delay and the deleterious effects of custody on a young person, the respondent notes that the applicant is likely to be sentenced to a significant term of imprisonment if found guilty of the charges against him. It is noted further that, since the applicant’s remand, he has been charged with additional serious offences arising out of the Tucker matter.
Unacceptable risk
Endangering the safety and welfare of any person
It is the respondent’s position that, if released in the community on bail, the applicant will pose an unacceptable risk of endangering the safety and welfare of others. This is on the basis of the very serious nature of the charges the applicant is facing, described as brutal group attacks against defenceless victims, using machetes and knives. It is noted that the offending in relation to the Tucker matter was also violent in nature. In addition, the applicant has been involved in a further incident since his remand, being a one‑on‑one fight with another young person in custody on 23 December 2022. During the fight, the applicant reportedly ignored staff attempts to intervene, and only stopped fighting once an emergency response team intervened. The applicant did not sustain any injuries, and the other young person was treated with pain killers.
In relation to the evidence of Mr Saxton about concerns for the applicant’s own safety, the respondent submitted that this was not a relevant consideration for the court. Counsel for the respondent contended that the Act specifies that the relevant risk to be considered is whether the applicant would pose a danger to the safety or welfare of others. It was also submitted that there was no authority to suggest that the safety of the applicant was a matter to be taken into account.
Committing an offence whilst on bail
It is conceded that the applicant has no criminal history, and therefore no history of committing offences while on bail. Notwithstanding this, the respondent relies on the applicant’s fight with another young person in custody (referred to above) to submit that the applicant has shown a disregard for intervention and consequences.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent suggests in its written submissions that there is a risk the applicant will interfere with a witness or otherwise obstruct the course of justice. However, no submissions were made to substantiate this point.
Failing to surrender into custody in accordance with the conditions of bail
It is conceded that the applicant has no history of failing to answer bail. However, the respondent notes that he departed from Australia the day after the deceased was killed, and that the travel plans were not prearranged (the applicant having only booked his flight to Somalia the day after the alleged offending, which was the same day he departed). It is also noted that a number of the other accused booked, or attempted to book, international flights immediately following the alleged offending. The respondent relies on these matters to submit that the applicant and his co‑accused are likely to have discussed plans to flee the jurisdiction following the deceased’s death. However, during the hearing, counsel for the respondent conceded that, given the applicant voluntarily returned once he was aware of the police interest in him, there was only so far that he could take this point.
Analysis and conclusions
As discussed above,[13] section 3B(1) of the Act sets out a list of considerations that the court must take into account when considering whether to grant bail to a child such as the applicant. These considerations make it clear that, when it comes to bail, children are in a special category. As was observed by the Court of Appeal in HA:[14]
Section 3B of the Act reflects the underlying principle in the criminal justice system that a decision to hold a child in custody should be made only as of a last resort. In considering whether to grant bail, and in the sentencing process, courts are astute to avoid imposing a term of detention, unless there is no other reasonable disposition available.
[13]See paragraph 47 above.
[14]HA (a pseudonym) v The Queen [2021] VSCA 64, [55] (Maxwell P and Kaye JA).
Moreover, in an oft‑cited passage, T Forrest J held in Re JO:[15]
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child. [emphasis added]
[15][2018] VSC 438, [14] (T Forrest J). His Honour’s observations have been repeatedly applied by this court: see, for example, Re RN [2023] VSC 9, [20] (Priest JA), Re KE [2021] VSC 175, [51] (Kaye JA), Re GG [2021] VSC 12, [47] (Incerti J), Re JS [2020] VSC 606, [24] (Kaye JA), Re IH [2020] VSC 325, [33] (Tinney J), Re Moore [2019] VSC 344, [18] (Priest JA), Re LT [2019] VSC 143, [37] (Elliott J), Re NB [2019] VSC 37, [29]–[30] (Lasry J).
That does not of course mean that a child who is alleged to have committed violent crimes should automatically be granted bail. Each case must be determined according to its own facts and circumstances. The non‑exhaustive list of surrounding circumstances in section 3AAA of the Act makes it clear that a child’s age is merely one factor (albeit an important one) to be considered.[16]
[16]The Act, s 3AAA(1)(h).
This conclusion is further supported by the guiding principles in section 1B of the Act. When determining whether to grant bail, the court must consider factors beyond the applicant’s circumstances; it must be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.
With the above factors in mind, I turn to considering the merits of the application.
Exceptional circumstances
Special vulnerability, delay and conditions in custody
It is clear from the authorities cited above that the applicant’s age and vulnerability is of central importance.
As above, the applicant is 17 years old, with no criminal history. He is in custody for the first time, and has been so since 15 November 2022. Furthermore, at the time of the alleged offending in the Stadler matter, the applicant was not facing any other charges. At the same time, it noted that whilst on remand, the applicant was charged with offences predating the Stadler matter, for which he is currently on summons.
It is undoubted that there will be a significant delay in the Stadler matter until it is finally resolved. The number of alleged offenders adds to the prospect that these charges will not be resolved until 2024. The extent of such a delay is a significant factor weighing in favour of a grant of bail to the applicant, who is a child.
Nature of the alleged offending
However, notwithstanding the applicant’s age, it is beyond question that the alleged offending in both the Stadler and Tucker matters is of an extremely serious kind:
(a) the Stadler matter involves the violent kidnapping of the complainant, and then what appears to have been the brutal killing of the deceased, thus amounting to two instances of alleged offending of a violent kind in a short space of time. The murder is alleged to have been carried out by multiple young offenders, using bladed weapons. Little mercy appears to have been shown to either the complainant or the deceased by the persons that attacked them and those that may have been complicit in these events; and
(b) the Tucker matter involved an unprovoked attack in which multiple victims were held hostage, robbed, stabbed with machetes and punched in the face.
Parity and strength of the prosecution case
On 14 December 2022, Justice Hollingworth granted bail to MB, an alleged co‑offender in the Stadler and Tucker matters. Further, on 7 March 2023, I granted bail to SQA and MG. SQA is alleged to have been involved in both the Stadler and Tucker matters, while MG is alleged to have been a co‑offender in only the Stadler matter.
In each of those applications, it was found that the evidence against BM, SQA and MG was circumstantial and that the prosecution case had not progressed significantly, particularly in the period between the first and second applications for bail.
In relation to the nature of the evidence, it is to be noted that there is an allegation that the applicant’s fingerprints were found on a hammer, when an item such as a hammer is said to have been involved at the time of the fatal assault. Notably, this is capable of being regarded as a point of distinction, but that said, the case essentially remains a circumstantial one. It might also be noted that the prosecution allege that there is some evidence that is capable of pointing to animus on the part of the applicant towards those that had earlier been involved in events at his home.
Notwithstanding the matters noted above, in my opinion the prosecution case has not advanced to a point where considerations of the strength of the prosecution cases are so materially different to the point that this applicant’s circumstances can be distinguished from those relating to the applications by BM, SQA and MG. The applicant maintained that he has a reasonable prospect of acquittal in the face of what presently amounts to a circumstantial case, with what are asserted to be triable issues in play.
Availability of treatment, bail support services and education
The applicant relies on the availability of bail support, including that of his family and Youth Justice, should he be granted bail. It is to be noted that similarly to the other applications before this court, in the face of which those applicants were granted bail each was deemed unsuitable for Youth Justice supervised bail. Despite this deemed unsuitability, in each case, Youth Justice confirmed that should bail be granted the applicant would be given necessary support by way of supervised bail. With respect to this issue, I am satisfied that Youth Justice is prepared to fulfil its obligations with respect to the applicant, and further that a satisfactory line of communication exists with the applicant’s parents, along with the proposal that Youth Justice will inform the informant should there be any breaches of bail conditions by the applicant.
Furthermore, the applicant relies on the ability for him to resume his education at The Pavilion School in East Preston, with his enrolment being confirmed, along with guaranteed support from a teacher, youth worker, and integration aid, and a prepared timetable for his return to education. I am satisfied that the applicant can return to school if granted bail, and that this can be made a condition of a grant of bail.
Family support and stable accommodation
It is proposed that the applicant can return to reside at his parents’ home, and live within the family setting. Having heard evidence from the applicant’s father, I accept that he has given an undertaking to the court that should he become aware of any breaches of bail conditions by the applicant, this will be reported to the authorities. I also take into account that Youth Justice has assessed the applicant’s home environment as satisfactory for the applicant to reside in.
Criminal history and post‑offence conduct
I note the applicant has no prior convictions, but also have taken into account the evidence that the applicant has been involved in some concerning behaviour in the custodial setting, especially when considered along with the allegations of violence involved in the Stadler and Tucker matters.
Having taken into account all the circumstances put forward, particularly emphasising the young age of the applicant, the likely delay in resolution of the outstanding matters, and the nature and seriousness of the prosecution cases, I am prepared to accept that the combined circumstances lead to the conclusion that the exceptional circumstances test has been satisfied in the case of this applicant.
Having concluded that the exceptional circumstances test is satisfied, that however is not the end of the matter as the respondent argues that the applicant remains an unacceptable risk as defined by the Act, and that he should not be admitted to bail. It is clear that the burden of establishing this remains on the respondent, and that in assessing this matter, the court is obliged to take into account surrounding circumstances, which I have done.
Unacceptable risk
In making an assessment of the unacceptability of risk, many of the factors put forward in support of the argument as to exceptional circumstances are relevant to the consideration of the unacceptable risk question. Insofar as they are relevant to the question of an assessment of unacceptable risk, I have taken these matters into account, along with the surrounding circumstances, as I am obliged to do.
I have particularly taken into account the factors of whether the applicant represents an unacceptable risk of committing further offences while on bail, and being a threat to persons associated with the two alleged victims. In this regard, the nature of the alleged violent offending, and behaviour of the applicant subsequent to the alleged offending in the Stadler matter is of particular concern, namely, the concerning behaviour while in the custodial setting. Furthermore, there is also the question of the applicant’s departure from Australia in the days following the alleged events.
As a starting point, I note that in some respects the evidence provided by Youth Justice as to the reasoning the applicant was not recommended for supervised bail, as somewhat confused. Part of that reasoning appeared to be that the applicant was at risk from others by way of retribution, should he be released back into the community.
The question arose in my mind as to whether it was relevant to the determination of this application that the applicant may be at risk of retribution by others should he be released on bail. In respect of this issue, I accept the submission of both the applicant and the respondent that the safety of the applicant from others is not a relevant consideration in relation to unacceptable risk, except insofar as it may support an argument that he is a more vulnerable individual than he otherwise might have been.
More importantly however, the evidence seemed to be that it was not ultimately suggested by Youth Justice that the applicant represented a risk to other people, should he be released on bail. The question as to whether there is a risk that he would commit further offending, can be evaluated in the light of the approach taken by Youth Justice. It was argued, and I accept, that risk of any further offending can be reduced to an acceptable level by the imposition of bail conditions.
As to the question of flight, I remain concerned by the fact that the applicant left Australia the day after the alleged offending, and in company with one of his co‑offenders. I have noted that the applicant’s grandfather died on 29 September 2022, about three weeks before his departure on 17 October 2022. However, I ultimately accept the evidence of the applicant’s father that the applicant returned to Australia of his own free will in circumstances where he was aware the police wished to speak with him about the allegations made in the Stadler matter. Taking into account these matters, I am satisfied that conditions can be put in place that are capable of restricting the applicant’s movements.
Finally, in assessing whether the respondent has persuaded the court that the applicant is an unacceptable risk as defined by the Act, the question to be answered is not whether risk can be eliminated, but whether it can be reduced to a level that is regarded as acceptable in all the circumstances.
Taking into account all the matters put before the court, I am not satisfied that the respondent has established the applicant will remain an unacceptable risk should he be granted bail. A grant of bail always carries an element of risk. In my opinion such risk, as does exist, can be ameliorated to an acceptable level by the imposition of appropriately strict bail conditions.
Conclusion
In all the circumstances, the applicant will be granted bail with appropriate conditions.
I propose to grant bail broadly on the applicant’s own undertaking and on the following special conditions:
(a) he attend the Melbourne Magistrates’ Court on a day that will be identified by the parties and then surrender himself, and then must not depart without the leave of the court, and if leave is given, return at the time specified by the court and then surrender himself into custody;
(b) he will reside at his family’s home address, which will be identified in the orders that will be made. He must not change this address without the leave of the court;
(c) he will remain at his family’s home address between the hours of 8:00pm and 6:00am each day for the duration of bail. These times might change depending on the discussions between the parties, because educational or daily activities might affect the time at which the curfew will operate;
(d) he present himself at the front door of his premises during curfew hours, if and when called upon by a member of Victoria Police;
(e) he notify the informant at least 14 days in advance of a proposal to change his place of residence;
(f) he report during the week (I propose Monday, Wednesday and Friday or the nearest day thereafter if those days fall on public holidays) to the officer in charge of the relevant police station closest to his residential address. The reporting will of course be during hours of the day, which again can be discussed between the parties depending on anything that arises from any work obligations;
(g) he report to a person at Youth Justice within two working days after this order comes into effect. These persons will either have to be named or will otherwise be the manager or the delegate;
(h) he comply with the lawful directions of the Youth Justice bail service program;
(i) he attend The Pavilion School;
(j) importantly, he not contact his fellow co‑accused (either directly or indirectly);
(k) he not contact (directly or indirectly) any witness for the prosecution, except the informant;
(l) he not possess or use more than one mobile telephone;
(m) he provide the informant with the phone number and IMEI number of the mobile telephone that he possesses or uses, within 24 hours of first having access to that phone;
(n) he produce his mobile phone for inspection, on the reasonable request of the informant or the informant’s nominee;
(o) he not leave the State of Victoria;
(p) he not attend any point of international departure;
(q) he surrender any passport that may be held to the informant within 24 hours of release, and not apply for another passport; and
(r) he not apply for a passport or travel document (whether directly or indirectly), or cause any other person to do so on his behalf.
The applicant will reappear before this court for judicial monitoring, to review compliance with the bail orders, at 9:30am on a date that will be chosen between my associates and the parties, and any other further dates that the court appoints during the course of this order.
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