Re Im - [2023] VSC 360

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…

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 Im

Details

AGLC: Re Im [2023] VSC 360
Case: [2023] VSC 360
Decision Date: 5 April 2023

CaseChat Overview and Summary

In the case of Re Im, the applicant, a child, sought bail in relation to charges of murder and kidnapping. The matter was heard in the County Court of Victoria. The primary legal issues the court had to address were whether the exceptional circumstances required under the Bail Act 1977 (Vic) had been demonstrated, and whether the risk of the applicant failing to appear in court or offending while on bail could be rendered acceptable through appropriate bail conditions.

The court examined the nature of the charges, which were serious and involved a circumstantial case with significant delays expected. The applicant's special vulnerability, lack of criminal history, and parity with co-accused who had been granted bail were considered. The court concluded that the exceptional circumstances were met due to the substantial delay in the case and the applicant's vulnerability. Furthermore, the risk of the applicant failing to appear or reoffending could be managed with suitable bail conditions. Therefore, the court granted bail with appropriate conditions to ensure the applicant's appearance in court and to mitigate any risk of reoffending.

Orders