Re JO

Case [2018] VSC 438 7 June 2018

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0152

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for bail by JO

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2018
DATE OF JUDGMENT:	7 June 2018
CASE MAY BE CITED AS:	Re JO
MEDIUM NEUTRAL CITATION:	[2018] VSC 438

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CRIMINAL LAW – Application for bail – 13 year old applicant – Bail not opposed – Whether applicant has demonstrated exceptional circumstances – Applicant’s age significant in assessing whether applicant has demonstrated exceptional circumstances – Bail Act 1977 (Vic) ss 3B(1), 4A, 4B, 4E(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich SC with Ms A Brennan	James Dowsley & Associates
For the Respondent	S Ballek	Office of Public Prosecutions

HIS HONOUR:

On 31 May 2018, the applicant, aged 13, was arrested and remanded in custody on the following charges:

·Criminal damage;
·Committing an indictable offence whilst on bail;
·Wilful damage of property;
·Unlawful assault.

The informant for these offences is First Constable Walia. The charges arise out of events alleged to have occurred on 31 May 2018 at the residential care facility where the applicant was residing.

At the time of this alleged offending, the applicant was on separate grants of bail for five outstanding sets of offences. These are alleged to have occurred between 1 March 2018 and 6 May 2018.

On 31 May 2018, the applicant made an application for bail at the Frankston Children’s Court. This application was refused on the basis that although the applicant had established exceptional circumstances, he was nonetheless an unacceptable risk of committing further offences.

The applicant applies to this Court for a grant of bail.

The statutory test

Under the new legislation, having been charged with an indictable offence that is alleged to have been committed while the applicant was on bail for other indictable offences, the applicant accepts that, by reason of the operation of s 4A of the Bail Act 1977 (Vic) (‘the Act’), he must demonstrate that ‘exceptional circumstances’ exist that justify the grant of bail. Should the decision-maker be satisfied of this, he or she must proceed to consider whether the applicant is an unacceptable risk of a kind referred to in s 4E(1)(a).[1] If the decision-maker is satisfied that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, endanger the safety or welfare of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person, the Court must refuse bail notwithstanding that the applicant has satisfied the ‘exceptional circumstances’ test. The burden of proving there is an unacceptable risk of the prescribed type rests with the prosecution.
[1]See also Bail Act 1977 (Vic) s 4B.

Given that the applicant is a…

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 JO

Details

AGLC: Re JO [2018] VSC 438
Case: [2018] VSC 438
Decision Date: 7 June 2018

CaseChat Overview and Summary

A 13-year-old applicant, identified as JO, applied for bail in a Victorian court. The application was not opposed by the prosecution. The central issue before the court was whether the applicant had demonstrated exceptional circumstances warranting bail under the Bail Act 1977 (Vic). The court considered the applicant’s age as a significant factor in assessing whether exceptional circumstances were present. The relevant sections of the Act included ss 3B(1), 4A, 4B, and 4E(1)(a).

The court examined the statutory provisions to determine the criteria for exceptional circumstances, particularly in the context of a minor. It focused on the interplay between the applicant’s age and the potential impact of detention on the applicant’s development and welfare. The court acknowledged the importance of considering the unique vulnerabilities of a child and the potential long-term effects of incarceration. The analysis involved a careful balance of the seriousness of the alleged offence against the need to protect the applicant's welfare.

After evaluating the evidence and arguments presented, the court found that the applicant had demonstrated exceptional circumstances due to their age and the specific impact of detention on a minor. The court determined that these factors warranted granting bail. The court issued orders to release the applicant on bail, subject to specified conditions to ensure the applicant's attendance and compliance with the terms of the bail.

Orders