Re JK

[2020] VSC 160

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0169

IN THE MATTER of the Bail Act 1997

and

IN THE MATTER of an application for bail by JK

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March, 1 April 2020
DATE OF JUDGMENT:	1 April 2020
CASE MAY BE CITED AS:	Re JK
MEDIUM NEUTRAL CITATION:	[2020] VSC 160

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CRIMINAL LAW – Application for bail – Applicant charged with manslaughter – Child – Minimal criminal history – Adequate supervision and support on bail – Application supported by Youth Justice - Effects of COVID-19 pandemic – Any relevant risks able to be managed by appropriate bail conditions, including judicial monitoring – Compelling reason shown – Bail granted on conditions

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APPEARANCES:	Counsel	Solicitors
For JK	Mr J Williams Ms J Munster	Victoria Legal Aid
For the Director of Public Prosecutions	Mr G Hayward Ms R Champion	Solicitor for Public Prosecutions

HER HONOUR:

Introduction

1. JK is charged with the manslaughter of John Bourke, who was killed in his own home in July 2018.  JK was originally charged with the murder of Mr Bourke.  On 11 March 2020, after a trial held in Bendigo, JK was acquitted of Mr Bourke’s murder, but his co-accused, JF, was convicted of that murder.  After deliberating for 5 days, the jury was discharged after being unable to reach a verdict against JK on the statutory alternative of manslaughter. 

1. JK has never denied being involved with JF in an assault on Mr Bourke, but he denies being responsible for Mr Bourke’s death.  His defence at trial was that he had not inflicted (or agreed to the infliction of) any serious blows, and had withdrawn from the attack before the fatal blows were struck, after trying to stop JF from further assaulting Mr Bourke.  It is clear that the jury was divided on the question of whether or not JK had effectively withdrawn.  JK will face a new trial on a fresh indictment for manslaughter at a later date. 

1. After the jury was discharged, JK applied for bail pending his retrial.  Some brief oral evidence was led in support of the bail application, but it was clear that both sides would need more time to gather evidence in relation to the application.  Accordingly, I adjourned the bail application until today, and set a timetable for the filing of affidavits.

1. In the meantime, the COVID-19 pandemic intervened.

General bail principles

1. JK falls within the “show compelling reason” bail category.[1] He bears the burden of establishing that a compelling reason exists that justifies the grant of bail. In considering whether a compelling reason exists, I must take into account all of the “surrounding circumstances”, a concept which is defined in s 3AAA of the Bail Act, and to which I will return shortly.

   [1]Manslaughter is a Schedule 2 offence, and s 4AA(2) of the Bail Act 1977 (“Bail Act”) does not apply here.

1. If I am satisfied that a compelling reason exists, I must then consider whether (having regard to the surrounding circumstances) the prosecution has established that there is an unacceptable risk that, if released on bail, JK would do any of the following: endanger the safety or welfare of any person; commit an offence; interfere with a witness or otherwise obstruct the course of justice; or fail to surrender into custody.

1. In addition to those general principles, there is a further provision which applies to all applications for bail made by children.  Although JK is now 19, he was 17 at the time of the incident; he therefore falls within the definition of “a child” for relevant purposes.[2] Section 3B(1) of the Bail Act provides that, in making a bail determination in relation to a child, I must take into account a number of additional matters, which relevantly include the following:

   [2]           Children, Youth and Families Act 2005, s 346.

(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)       …

(d)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and

(e)       …

(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. 

1. In deciding whether to grant bail to a child, I may take into account any recommendation or information contained in a report prepared by a bail support service.[3]  This application for bail is supported by a Supervised Bail Assessment Report, prepared by the Youth Justice Branch of the Department of Justice and Community Safety, dated 26 March 2020.  The report’s author, Dale Hartland, a case worker who has worked with JK for some years, also gave oral evidence in support of the application on 11 March 2020.

   [3] Bail Act, s 3B(2).

The surrounding circumstances

1. I turn to consider the various “surrounding circumstances” matters listed in s 3AAA.

1. It is clear that the events of the night in question were initiated by the co-accused, JF, who set out to assault the man who he believed had sexually assaulted a friend of his.  He persuaded JK to come with him.  In his drunken state, JF took JK to the wrong house, where they proceeded to assault a totally innocent and vulnerable man who suffered from brittle bone disease.  What happened to John Bourke that night was an absolute tragedy.  JF will be sentenced for Mr Bourke’s murder, after a plea hearing in July of this year. 

1. In acquitting JK of murder, it is clear that the jury was not satisfied that JK assaulted Mr Bourke, or agreed to Mr Bourke being assaulted, with the intention of causing him really serious injury.  Whether JK will be found guilty of the less serious charge of manslaughter will be for another jury to determine at the re-trial.  The fact that the first jury deliberated for so many days on the issue of withdrawal is an indication that the prosecution case against JK for manslaughter is far from straightforward. 

1. Nevertheless, I acknowledge that manslaughter is a serious charge, involving the unintentional taking of another person’s life. 

1. In granting bail to JK, I am not, in any way, wishing to diminish the seriousness of what happened that night, the terrible consequences for Mr Bourke, or the ongoing grief and loss suffered by his loved ones. However, I am required to consider this bail application having regard to the principles set out in the Bail Act.

1. JK has a very limited criminal history, involving two property-related matters for which the Children’s Court placed him on a good behaviour bond without conviction.  However, I note that the assault on Mr Bourke occurred at a time when he was on that bond.

1. He has also been charged on summons in relation to a single incident that occurred at the Malmsbury Youth Justice Centre in March 2019.  That matter has been adjourned administratively until June 2020, but it is not clear when that matter may be tried, given the pandemic.

1. It is proposed that JK will live at home with his parents and one of his older brothers.  His parents appear to be hardworking members of the local community, who have both worked for the same company for more than 20 years.  They have lived at the same family home for more than 25 years.  They also own a cattle farm about 10 minutes’ drive from Maryborough, which has been in the family for four generations.  JK’s grandmother still lives on the farm.   There are other family members available to help support JK on bail.

1. The 23 year old brother who is still living at home does have a number of prior convictions for both violence and property-related offences, which seem to be tied in with substance abuse problems.  He would not be a suitable person to supervise JK on his own.  I am not dismissing the prosecution’s concern about the brother’s unsuitability, but the evidence is that the parents are both responsible people.  The parents’ current working hours are 8 am to 2 pm, which means that JK will be adequately supervised for most of the afternoon and all of the evening.  The parents have both given undertakings that they will report any breaches of the bail conditions to the informant.  That gives me some comfort that they will do their best to ensure that JK does not drink alcohol, abides by the curfew, and engages with the education and training opportunities and the counselling that will be available to him under Youth Justice supervision.

1. The nature of JK’s bail application has changed significantly because of the pandemic.  That is a common feature of all bail applications in the current environment. 

1. One of the most common consequences of the pandemic will be significant delays in the hearing of indictable trials in this court and the County Court.  Jury trials have been postponed indefinitely, primarily to avoid the assembly of large groups of people for jury pools.  Although the date for JK’s re-trial was fixed for October 2020, there is no certainty that jury trials will have re-commenced by that date.  Even allowing for the fact that the trial of a child would have some priority in court listings, there can be no certainty that JK’s re-trial will take place before the start of next year.

1. JK has been in custody since mid-July 2018, a period of more than 20 months.  If his re-trial occurs in October 2020, he will have been in custody for 27 months.

1. Unlike some of the other cases in which bail has been granted since the pandemic began,[4] even if the re-trial did not take place until early 2021, it is not suggested that JK would necessarily have spent more time on remand than the head sentence that may be imposed should he be found guilty of manslaughter.[5]   However, I accept that the time that would be spent on remand could be as much as, or a significant proportion of, the likely non-parole period.[6]  Furthermore, keeping any child in custody for three years, awaiting trial for a serious offence, is highly undesirable.

   [4]           For example: Re Broes [2020] VSC 128.

   [5]It is not necessary for me to make any findings as to whether or not a youth justice disposition would be available in the current case.

   [6]           Hanna v DPP (Unreported, Supreme Court of Victoria, 9 May 2008, Nettle J), [14].

1. Apart from delay, the pandemic affects this bail application in two important respects. 

1. First, the Malmsbury facility where JK is currently being held has suspended all personal visits. JK can no longer see his family every week, as he has done throughout his time in custody. There is no indication as to when personal visits may resume but, based on public statements by the government, one would have to think that is many months away. True it is that the pandemic is forcing many families to communicate via phone or audio-visual links, but the effects of actual physical separation from family can be more acute for young persons than adults. Section 3B(1)(b) of the Bail Act expressly recognises the importance of strengthening and preserving such relationships in the case of accused who are children.

1. Secondly, the pandemic has affected JK’s opportunities to continue with education and training.  Whilst in custody, JK has been receiving an education through services provided at Malmsbury by Parkville College.  He recently completed his VCAL to Year 11.  Prior to the pandemic, he was proposing to continue on with further study through Parkville.  Schooling through Parkville has ceased in line with Department of Education requirements.

1. It may be the case that Parkville or Malmsbury will find a way of offering educational activities during the pandemic, but at the moment there is no evidence as to when that might be, or what form it might take.   On the other hand, the Youth Justice report sets out various online educational and training opportunities that would be immediately available to JK, were he to be released on bail.

1. Once again there is a statutory imperative to have regard to the desirability of allowing educational and training opportunities for children to continue without interruption or disturbance.

1. Alcohol abuse was a problem for JK before his arrest, and undoubtedly played a role in the current offending.  The pandemic has led to the closure of licenced premises, and the banning of social gatherings, so the opportunities for JK to go out and party with his friends have been substantially reduced.  Somewhat ironically, the various COVID-19 restrictions will serve to reinforce the bail conditions banning JK from consuming alcohol, and requiring him to observe an 8pm to 8am curfew each night. 

1. The prosecution is concerned that, if released on bail, JK may interfere with witnesses, either in relation to his own case, or in relation to some other charges  which have recently been laid against JF (“the JF charges”). 

1. In relation to the witnesses in his own case, all of their evidence (particularly the evidence of the many child witnesses) was recorded during the recent trial.  It is possible that some or all of their pre-recorded evidence may be played at the re-trial, instead of calling them again as witnesses.  If any of them tried to change their evidence between the first trial and the re-trial, in circumstances where JK was out on bail, it is highly likely that the prosecution would be granted leave to cross-examine them, to explore why they had changed their evidence.

1. There is some evidence that in July 2018, when JK and JF were still friends, JK threatened to assault a witness if she spoke to the police in relation to the JF charges.  However, it seems that JK and JF have fallen out since then, and there is no reason to think that JK would risk having his bail revoked by interfering with witnesses on JF’s behalf.

1. I will make it a condition of bail that JK may not contact directly or indirectly (through a mutual friend or acquaintance), any prosecution witness in either case, except for the informant.  Maryborough is a relatively small community, and most of the lay witnesses in both cases know each other to some extent.  If JK seeks to contact any of the prosecution witnesses, there is good reason to think that it will come to the informant's attention through some route.

1. JK has been in custody since his arrest for this matter when he was 17.  There is substantial evidence in the reports from his teachers that he has matured since then, that he has been engaging with educational opportunities, and has consistently demonstrated good behaviour in the classroom.  In granting him bail, I will give him an opportunity to demonstrate that maturity in a non-custodial setting, to see whether he is able to continue the good progress that he has been making.  I propose to monitor his bail, to ensure that he is complying with its conditions.  I will order that he appear before me in two months’ time for judicial monitoring.  If JK has been complying with his conditions of bail, his bail will be continued.  If he has not, then I will consider revoking his bail and placing him back in custody until his re-trial.

1. The Bail Act requires me to consider all other options before remanding a child in custody. Granting JK bail on the strict conditions that I am going to impose is an acceptable alternative to leaving him in custody for an unknown time, in pandemic conditions.

1. For these reasons, I am satisfied that compelling reason exists to justify the grant of bail.  I am also satisfied that it has not be shown that there is an unacceptable risk of JK re-offending, or interfering with witnesses, on the proposed conditions of bail.  Accordingly, I will grant bail.