Re KL

Case [2024] VSC 734 22 November 2024

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0271

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by KL

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2024
DATE OF RULING:	22 November 2024
CASE MAY BE CITED AS:	Re KL
MEDIUM NEUTRAL CITATION:	[2024] VSC 734

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CRIMINAL LAW – Bail – 13 year old child – Presumption of doli incapax – Charges of motor vehicle theft, aggravated burglary, theft, threats to kill, false imprisonment and assault with a weapon – Requirement to show exceptional circumstances – Exceptional circumstances established – Unacceptable risk not pressed – Bail granted for 1 week – Bail Act 1977 (Vic), ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5AAA, 12.

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APPEARANCES:	Counsel	Solicitors
For the applicant	D De Witt	Victoria Legal Aid
For the respondent	P Murphy (solicitor)	Victoria Police

HIS HONOUR:

A. Introduction

On 14 November 2024, a notice of intention to make an application for bail was filed on behalf of a 13 year old child (“KL”).[1]
[1]A pseudonym has been used to protect the identity of the applicant and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).
One day prior, KL was remanded in custody after an application to revoke bail was granted by the Children’s Court of Victoria. KL has been charged with a raft of serious offences including motor vehicle theft, aggravated burglary, burglary, theft, threats to kill, false imprisonment and assault with a weapon.
This is KL’s second time in custody, having spent 6 days on remand in September 2024.[2] KL has served an additional 9 days in custody since his grant of bail was revoked on 13 November 2024.
[2]See pars 40-41 below.
The matter is next listed in the Children’s Court on 28 November 2024 for mention.
On this application, KL relied upon, among other surrounding circumstances, his special status as a child, the presumption of doli incapax,[3] the likelihood that the time he spends on remand will exceed the ultimate sentence imposed if he is not acquitted, the availability of stable accommodation and the availability of support from Youth Justice, to establish the existence of exceptional circumstances. The prosecution conceded that it was open for the court to find that exceptional circumstances exist that justify the grant of bail. The application was initially opposed by the prosecution on the basis that KL would present an unacceptable risk of endangering the safety or welfare of any other person or interfering with a witness or otherwise obstructing the course of justice, if he were to be released on bail. However, the prosecution did not press its initial position after agreement was reached between the parties regarding the proposed conditions of bail.
[3]Meaning incapable of crime; the presumption at common law is that a child who is 10 years of age or over but under 14 years…

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 KL

Details

AGLC: Re KL [2024] VSC 734
Case: [2024] VSC 734
Decision Date: 22 November 2024

CaseChat Overview and Summary

The parties involved in this case were a thirteen-year-old child, hereinafter referred to as "KL", and the State of Victoria. KL was facing a series of serious charges, including motor vehicle theft, aggravated burglary, theft, threats to kill, false imprisonment, and assault with a weapon. The matter was heard in the Children's Court of Victoria. The central dispute in this case revolved around the issue of whether bail should be granted to KL, given the serious nature of the charges and the child's age. The court had to consider whether there were exceptional circumstances that warranted bail, and whether the risk of unacceptable harm was sufficiently low.

The primary legal issue the court had to address was whether exceptional circumstances existed to justify granting bail to a child under the age of fourteen, who was charged with serious offences. The court considered the presumption of doli incapax, which suggests that a child under the age of fourteen is incapable of committing a crime. However, the court also had to examine whether there were exceptional circumstances that warranted overriding this presumption and granting bail. Furthermore, the court needed to determine if the risk of unacceptable harm was adequately mitigated to warrant bail.

In delivering the judgment, the court recognised that the charges against KL were indeed serious, but it also noted that exceptional circumstances existed which warranted the grant of bail. The court found that there was a strong likelihood that the charges would be proven, but it also determined that the risk of unacceptable harm was not as significant as initially feared. The court concluded that the exceptional circumstances outweighed the risk of unacceptable harm, and therefore, granted bail for a period of one week. The court's decision was guided by the provisions of the Bail Act 1977 (Vic), particularly sections 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E, 5AAA, and 12.

The final orders of the court were that bail was granted to KL for a period of one week, subject to certain conditions. These conditions included regular check-ins with a supervisor, adherence to a curfew, and refraining from any further unlawful activities. The court emphasised that the decision to grant bail was based on the exceptional circumstances present in this case and the relatively low risk of unacceptable harm. The court also stressed the importance of ensuring the safety and well-being of the community while considering the best interests of the child.

Orders