Re KA - [2022] VSC 277

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0130

IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for Bail by KA	Defendant

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2022
DATE OF JUDGMENT:	26 May 2022
CASE MAY BE CITED AS:	Re KA
MEDIUM NEUTRAL CITATION:	[2022] VSC 277

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CRIMINAL LAW – Bail – Thirteen year old child applicant charged with multiple serious offences – Applicant accused of Schedule 2 offence while on bail for a Schedule 2 offence – Requirement to show exceptional circumstances – Whether exceptional circumstances made out – Whether an unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail or failing to surrender into custody in accordance with conditions of bail – Exceptional circumstances made out – Real and significant risk of committing further offences established – Risk not shown to be unacceptable in the circumstances – Judicial monitoring – Bail granted on stringent conditions – Bail Act 1977, ss 3AAA, 3B, 4AA, 4A and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Wong	Victoria Legal Aid
For the Respondent	Mr P Collins	Legal Practice Group Victoria Police

HIS HONOUR:

The applicant is a 13 year old child[1] who has no prior convictions. He currently faces 49 charges, laid by eight informants, for offences alleged to have occurred between 5 December 2021 and 10 March 2022, as follows:
[1]He turns 14 on 1 June 2022.

(1)On 22 December 2021, Senior Constable Christopher Hodgens charged the applicant with nine offences alleged to have occurred on 21 and 22 December 2021. These offences included robbery, theft and unlawful assault.
(2)On 22 December 2021, Senior Constable Sherry Cahir charged the applicant with three offences, alleged to have occurred on 22 December 2021. The offences were theft, possessing a drug of dependence and stating a false name.
(3)On 14 January 2022, Senior Constable Warren Frost charged the applicant with eight offences, alleged to have occurred between 4 and 14 January 2022. These offences included robbery, kidnapping, false imprisonment, unlawful assault, committing an indictable offence while on bail, failing to comply with a police direction and theft of a motor vehicle.
(4)On 4 March 2022, Senior Constable Troy Henderson charged the applicant with two offences, alleged to have occurred on 5 December 2021. The offences were robbery and assault in company.
(5)On 10 March 2022, Senior Constable Chris Fidler charged the applicant with nine offences, alleged to have occurred on 7 January 2022. The offences were aggravated carjacking – cause injury to a person, armed robbery, violent disorder, affray, intentionally cause injury, unlawful assault, assault in company, unlawful assault by kicking and committing an indictable offence while on bail.
(6)On 10 March 2022, Detective Senior Constable Charlie Love charged the applicant with four offences, alleged to have occurred on 3 March 2022. The offences were theft of a motor…

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 KA

Details

AGLC: Re KA [2022] VSC 277
Case: [2022] VSC 277
Decision Date: 26 May 2022

CaseChat Overview and Summary

The case of Re KA involved a thirteen-year-old child who applied for bail while facing multiple serious charges. The court had to consider the nature of the offences, the applicant's age, and the risk of reoffending while on bail. The case was heard in the relevant Australian court, which had to decide whether exceptional circumstances justified granting bail under the Bail Act 1977.

The court identified several key legal issues to be resolved. These included whether the applicant had established exceptional circumstances, given the serious nature of the charges and the risk of reoffending. The court also needed to determine if there was an unacceptable risk of endangering the safety or welfare of any person, or of committing an offence while on bail or failing to surrender into custody. Additionally, the court considered the potential for judicial monitoring and the imposition of stringent bail conditions to mitigate any risk.

In reaching its decision, the court examined the specific circumstances of the case. It concluded that exceptional circumstances had been made out, establishing a real and significant risk of the applicant committing further offences. However, the court found that this risk was not unacceptable in the given circumstances. Consequently, the court granted bail, subject to stringent conditions, including judicial monitoring. This decision was made under the authority of sections 3AAA, 3B, 4AA, 4A, and 4E of the Bail Act 1977.

The final orders of the court were that the applicant be granted bail on the conditions specified. These conditions were designed to ensure the safety of the community while allowing the applicant the opportunity to prepare for their defence. The court's decision balanced the need to protect the community with the applicant's right to liberty and fair treatment under the law.

Orders