Re KA (No 2)

[2022] VSC 363

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 [No 2]	Defendant

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 24 June 2022
DATE OF JUDGMENT:	24 June 2022
CASE MAY BE CITED AS:	Re KA [No 2]
MEDIUM NEUTRAL CITATION:	[2022] VSC 363

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CRIMINAL LAW – Bail previously granted on stringent conditions – Breaches of bail – Changed circumstances – Judicial monitoring – Revocation of bail – Power of the Court to revoke bail – Applicant arrested on charge of robbery alleged to have been committed after bail granted – Bail revoked – Bail Act 1977, ss 5AAA, 18AE and 18AH.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M Smoljko	Victoria Legal Aid
For the Respondent	Mr N Watt	Legal Practice Group Victoria Police

HIS HONOUR:

1. On 26 May 2022, I granted the applicant bail on stringent conditions.[1] The background to this matter is set out in the reasons I have published at that time. This judgment assumes knowledge of those reasons and should be read together with them.

   [1]Re KA [2022] VSC 277 (‘Bail Reasons’).

1. Pursuant to the orders I made on 26 May 2022, the applicant appeared in court on 20 June 2022 for judicial monitoring. Shortly prior to the judicial monitoring hearing, each side filed an Affidavit in Furtherance of Judicial Monitoring.

1. The affidavit filed on behalf of the applicant exhibited a Supervised Bail Progress Report compiled by Mr Rischitelli and endorsed by Mr Oderberg. The affidavit filed on behalf of the respondent exhibited an informant’s report written by Detective Senior Constable Caffrey. Both documents identified multiple breaches of bail conditions by the applicant. Largely, those breaches related to failing to attend school, failing to attend appointments and breaching curfew. That said, the material also disclosed periods during which the applicant complied with his bail conditions. Most importantly, no suggestion was made that the applicant had committed further offences since being released on bail.

1. During the course of the hearing on 20 June 2022, there was considerable discussion about a planned overseas trip which the applicant’s mother and some of his siblings were booked to take from 26 June to 20 July 2022. Initially, it was proposed that the applicant join his mother and siblings on that trip. Enquiries made during the course of the hearing, however, disclosed that that course was not possible.

1. Late during the hearing on 20 June 2022, the applicant’s counsel suggested an alternative which involved the applicant’s father travelling from interstate to Victoria to supervise the applicant in the applicant’s home while his mother and siblings were overseas. The judicial monitoring hearing was adjourned to today for the purpose of investigating the feasibility of this proposal.

1. On 22 June 2022, the applicant filed two affidavits in furtherance of judicial monitoring. The first affidavit exhibited an invoice and itinerary of the applicant’s father to travel to, and stay in, Victoria between 25 June 2022 and 22 July 2022 (covering the period during which the applicant’s mother and his siblings will be overseas). The second affidavit exhibited an Addendum to Bail Assessment Report (‘the Addendum Report’). The Addendum Report was compiled by Mr Oderberg, and endorsed by Nicole Tempany, a team manager employed by the Department of Justice and Community Safety.

1. In the Addendum Report it is stated that Youth Justice supports the applicant remaining on bail in the community with the parental oversight of his father. The report concludes:

It is respectfully recommended that the Court monitor this situation closely, with a further Judicial Monitoring hearing for one or two weeks from the current hearing date of 24 June 2022 to determine how the arrangement is progressing.

1. This morning, the Court was advised that the applicant had been arrested at 6.30 am at his home. At that time, a warrant of arrest was executed in respect of a robbery alleged to have been committed by him, in the company of others, on Saturday 18 June 2022 (two days before the judicial monitoring hearing conducted on 20 June 2022).

1. Having regard to the circumstances which have occurred since granting bail on 26 May 2022, the respondent now submits that I should revoke the applicant’s bail. Before dealing further with the factual basis for that submission, I need to deal with an issue concerning the Court’s power to revoke bail at a judicial monitoring hearing.

The Court’s power to revoke bail

1. In Re ZT,[2] Lasry J accepted a submission that this Court, ‘on the basis of the wording of the Bail Act, [does not] have an entitlement on a judicial monitoring hearing to revoke a bail order made, which does not require the original applicant to surrender him or herself to the Supreme Court but, rather, to a different court such as, in this case, the Children’s Court’. His Honour then gave his reasons for accepting this submission as follows:

   [2](Unreported, Supreme Court of Victoria, Lasry J, 10 May 2022).

Firstly, it is the fact that a regime of judicial monitoring as conducted in this court, regularly by me and by other judges, is effectively a fiction.

It is not referred or mandated by anything that is contained in the Bail Act 1977, judges impose conditions relating to judicial monitoring because it is a mean by which those judges conclude that an applicant who might otherwise have difficulties being granted bail, can be released and to be released effectively under some form of judicial supervision. I think that is an appropriate condition to impose and I think judicial monitoring and judicial supervision has a legitimate and useful role to play in endeavouring to prevent people like this applicant from committing further offences once released on bail.  But the fact is it is a fiction, it is not a product of any provision of the Bail Act. 

To the extent that anyone pays attention to anything I may say about that, I indicate now that I would strongly urge the Victorian Government to introduce amendments to the Bail Act which actually provide a legislative basis for judicial monitoring because it is useful, and to provide Courts who use judicial monitoring as a process with powers both to enable judicial monitoring and to enforce judicial monitoring should it become necessary.  However, as at today those powers do not exist.  It is trite to say that the power to remove a person's liberty should as a matter of course be expressed in clear and unequivocal terms in legislation so that if the Supreme Court of Victoria is to have the power to revoke an order for bail on a hearing such as this that power should be clear and unequivocal.

It does not exist in the Bail Act as it presently stands. What is preserved in the Bail Act are the rights of persons to make applications for bail effectively notwithstanding the outcome of such applications in other Courts, and section 18AA(2) of the Bail Act provides ‘nothing in this section derogates from the right of a person in custody to apply to the Supreme Court for bail’. Likewise, in s 18AH as [counsel] for the respondent has provided, s 18AH(1) provides ‘nothing in s 18AA, 18AC or 18AE derogates from any other right of application or appeal of the Supreme Court or the County Court’.

Here there is no express power under the Bail Act for the Supreme Court to revoke bail other than in the circumstances provided for in s 18AE.  Section 18AH is part of the process which preserves the traditional rights of applicants to make applications for bail in the Supreme Court, as I have already said, irrespective of the outcome of the application they may have made in other courts, or to appeal as per s 18AA(2).

Nothing that I have said would prevent the continuation of judicial monitoring conditions.  No cases have been cited to me, and on a very brief examination with the assistance of the ever present and very useful assisting lawyers in the registry of the division of the Court, the issue has not effectively arisen where there has been any question about the entitlement of the Supreme Court to revoke bail; it has only arisen in circumstances where that matter has not been in contention between the parties.  Mr Moore has taken the point and it has to be dealt with obviously. 

So, in those circumstances I have come to the conclusion that the application that is foreshadowed by [counsel for the respondent] under s 18AE is an application which must be made in the Children’s Court sitting at [redacted]. And it’s not open to me in my view to proceed to deal with the application he seeks to make.

1. Sitting as a single judge, Lasry J’s conclusion that the terms of the Bail Act prevent this Court from revoking bail at a judicial monitoring hearing should be followed, unless I am persuaded that his Honour’s decision was plainly wrong.[3] With respect, I am so persuaded for the following reasons.

   [3]See Harding v Sutton [2021] VSC 741, [209] (Richards J). But see further Anteden Pty Ltd v Glen Eira City Council [1998] VSC 366, [25] (Balmford J); Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757, [73]-[76] (French J, as his Honour then was).

1. Prior to the enacting of the Bail Act in 1977, this Court had a well-recognised inherent jurisdiction to hear all bail matters; including the granting of bail and the revocation of bail as appropriate. The history of the Court’s jurisdiction was set out at length by the Full Court in Beljajev v DPP.[4] The enacting of the Bail Act in 1977 did not deprive this Court of its common law jurisdiction. Moreover, nothing in the Act as originally enacted deprived this Court of its well-recognised jurisdiction.

   [4](Unreported, Full Court of Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) (‘Beljajev’).

1. Section 18AE (inserted into the Bail Act by the Bail Amendment Act 2010) says nothing about the jurisdiction of this Court to revoke bail: it merely provides that an application for revocation made by the informant or the DPP ‘is to be made … to the court to which the person is required to surrender under his or her conditions of bail’. In the event that the DPP or an informant in fact applied to a different court for the revocation of an accused’s bail, the question of what consequences might flow from the failure by the DPP or the informant to comply with the terms of the section would be one to be determined in accordance with well-known principles of statutory construction.[5] Nothing in s 18AE, however, purports to deprive this Court of its ‘inherent jurisdiction to hear all bail matters’.[6] A failure by the DPP or an informant to comply with s 18AE may have different consequences in different circumstances. Plainly, making an application to revoke bail to a court with no connexion to the underlying proceeding would be more likely to result in that court refusing to hear the application (for non-compliance with s 18AE) than in a case where the application has been made as a matter of urgency to a court then and there seized with the matter.[7]

   [5]As to which, see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388–391 [91]–[93], and Davis (a pseudonym) v The Queen (2016) 55 VR 1, 23 [88] (‘Davis’).

   [6]Re Dukic [2018] VSC 664, [17] (Champion J).

   [7]See the factors relevant to the determination of such an issue set out in Davis (2016) 55 VR 1, 23 [88].

1. Section 18AE was, as I have already said, originally introduced into the Bail Act by the Bail Amendment Act 2010. Nothing in that Act or its explanatory memorandum suggests that s 18AE (or the other sections introduced by that Act) were intended to limit the jurisdiction of the Supreme Court. Moreover, in construing the provisions of the Bail Act (including s 18AE as subsequently inserted) it is necessary to bear in mind that an order admitting a person to bail is not a final order: it may be revoked at any time.[8] Thus, when appropriate circumstances are drawn to this Court’s attention requiring the Court to revoke bail previously granted, this Court undoubtedly has the necessary power to make the appropriate order — even if any application for such an order ‘is to be made’[9] (or is required to be made) to a different court. Indeed, so much has been assumed in a number of first-instance decisions of this Court.[10]

   [8]Beljajev, 30.

   [9]See s 18AE of the Act.

   [10]See, eg, Re Glory-Hyde [No 2] [2018] VSC 520, [13] (Priest JA); Re Dukic [2018] VSC 664, [16]–[18]; Re AJ (Revocation of Bail) [2021] VSC 395, [11]–[16] (Jane Dixon J).

1. The respondent submitted that s 18AH(1) permitted an application for the revocation of bail to be made to this Court in the present circumstances. Section 18AH(1) provides:

Nothing in section 18, 18AA, 18AC or 18AE derogates from any other right of application or appeal to the Supreme Court or the County Court.

1. The respondent did not identify what ‘other right of application or appeal to the Supreme Court upon which the respondent relied in the present proceeding. Having regard to what I have said above, however, it is not necessary to consider the proper ambit and operation of s 18AH further.

1. Next, I respectfully disagree with Lasry J’s characterisation of judicial monitoring as a ‘fiction’. Section 5AAA of the Act requires a bail decision maker considering the release of an accused on bail to impose any condition that, in the opinion of the bail decision-maker, will reduce the likelihood that the accused may endanger the safety or welfare of any person; or commit an offence while on bail; or interfere with a witness or otherwise obstruct the course of justice in any matter; or fail to surrender into custody in accordance with the conditions of bail. Section 5AAA(4) identifies a number of specified conditions which might be imposed.[11] It is true that judicial monitoring (a concept described in detail in ss 48K and 48L of the Sentencing Act 1991) is not specifically referred to in s 5(4) of the Act. Section 5(4) of the Act, however, permits a bail decision maker to impose:

(k)any other condition that the bail decision maker considers appropriate to impose in relation to the conduct of the accused.

[11]For completeness, I should note that the reference in s 5(4) to s 4(5) is erroneous. Section 4(5) of the Act no longer exists, having been repealed on 1 July 2018 by s 7 of the Bail Amendment (Stage Two) Act 2018.

1. While the question of whether a judicial monitoring condition is a condition ‘in relation to the conduct of [an] accused’ may be debated, merely because the concept of judicial monitoring is not mentioned in the Act does not make the imposition of such a condition a ’fiction‘. As Lasry J observed, judicial monitoring and judicial supervising have a legitimate and useful role to play in endeavouring to prevent some accused (particularly young people) from committing further offences once released on bail.

1. Finally (on this issue) it follows from what I have said above that there is no issue about the need for ‘clear and unequivocal’ language in the Bail Act to give this Court power to revoke an order for bail in a judicial monitoring hearing (or any other hearing). That power has always existed. To the contrary, clear and unequivocal language would have been needed to take that power away from the Court. There is no such language in s 18AE or the Act more generally.

Should the applicant’s bail be revoked?

1. During the course of the 20 June 2022 hearing, the respondent submitted that the applicant’s bail should be revoked because of the breaches of conditions identified to that date. At that time, however, I indicated that I would be unlikely to revoke bail in circumstances where there was no allegation that the applicant had committed further offences subsequent to the grant of bail on 26 May 2022. My reluctance stemmed from the material from Youth Justice. In particular, I was impressed by the Youth Justice evidence that the various breaches of conditions were ‘commonplace for a young person of [the applicant’s] age’, and that the applicant had:

begun to develop some insight into his decision making as well as demonstrated what could be readily described as better adherence to his current Supervised Bail Order compared to his previous attempt, further demonstrating an ability to make positive progress for himself.

1. The applicant’s arrest on the charge of robbery, together with the alleged finding of an item in his home relevant to that charge, puts the matter in a different category. I am now satisfied that the applicant is an unacceptable risk of committing further offences if allowed to remain on bail, and there are no conditions that I can impose which would reduce that risk to an acceptable level. Bail must be revoked.

Conclusion

1. The order made on 26 May 2022 admitting the applicant to bail is revoked.

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