Re KL - [2021] VSC 170

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0074

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by KL

---

JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2021
DATE OF JUDGMENT:	8 April 2021
CASE MAY BE CITED AS:	Re KL
MEDIUM NEUTRAL CITATION:	[2021] VSC 170

---

CRIMINAL LAW – Bail – Child aged 15 years – Applicant charged with Schedule 2 offences whilst on bail for Schedule 2 offences – Charges of affray and committing an indictable offence whilst on bail – Bail refused by Children’s Court – Whether exceptional circumstances justifying grant of bail – Whether unacceptable risk that applicant would commit further offence, endanger person or fail to answer bail – Bail refused – Bail Act 1977, s 3AAA, s 3B, s 4A, s 4AA, s 4E.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Naomi Low	Victoria Legal Aid
For the Respondent	Mr Paul Collins	Victoria Police Legal Practice Group

HIS HONOUR:

Introduction

The child applicant, ‘KL’, is aged 15 years. He has been in custody for about ten days. Having previously been refused bail by the Children’s Court he seeks bail from this Court. For the reasons that follow, bail will be refused.
The charges and alleged offending

KL was arrested on 29 March 2021 by Detective Senior Constable Alicia Thorp, and charged with a number of serious offences arising out of two incidents which took place respectively on 24 February and 29 March 2021. The charges include:

· Affray (two charges – charges 1 and 5);

· Intentionally causing injury (charge 2);

· Assault by kicking (charge 3);

· Assault in company (charge 4);

· Assault in company with an edged weapon (charge 6);

· Assault with an edged weapon (charge 7); and

· Committing an indictable offence whilst on bail (charge 8)

In very brief summary, charges 5 to 8 relate to events on 24 February 2021. It seems that there was an organised fight at the Ringwood Skate Park between two boys. The applicant and five others intervened, kicking, punching and stomping on one of the boys involved in the fight. I have viewed video footage of the attack. It shows the applicant twice savagely stomping on the victim’s head.

Charges 1 to 4 relate to events which occurred at about 3.30 pm on 29 March 2021. It appears that the applicant and two co-accused got into an argument in a bottle shop in Croydon with the 57 year old victim. The shop attendant heard the victim tell the applicant’s group to ‘fuck off’. (According to the applicant’s account in his record of interview, the victim made racist comments towards him.) The applicant’s group left the bottle shop shortly before the victim. Upon leaving, the victim was attacked by the applicant’s group and was punched, kicked and stomped on by the applicant and four co-accused. The attack lasted about 15…

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 [2021] VSC 170
Case: [2021] VSC 170
Decision Date: 8 April 2021

CaseChat Overview and Summary

The case of Re KL concerns a 15-year-old applicant who was charged with multiple serious offences while on bail for other offences. The applicant was facing charges under the Summary Offences Act 1988, including affray and committing an indictable offence while on bail. The Children’s Court had previously refused the applicant bail, a decision which was subsequently challenged. The legal issue before the court was whether there were exceptional circumstances that warranted the grant of bail, and whether the applicant posed an unacceptable risk of committing further offences, endangering others, or failing to comply with bail conditions.

The court considered the statutory framework provided by the Bail Act 1977, specifically sections 3AAA, 3B, 4A, 4AA, and 4E. The court examined the applicant's history of offending, the seriousness of the current charges, and the potential risk to the community if bail were granted. It was noted that the applicant had a history of absconding and a failure to comply with previous bail conditions, which were significant factors in the court's consideration. The court concluded that the risk of reoffending was high, and there was a substantial likelihood that the applicant would not adhere to bail conditions if released. The court also took into account the potential harm to the community if the applicant were to reoffend.

Given the serious nature of the charges and the applicant's history, the court found that exceptional circumstances did not exist to justify the grant of bail. Furthermore, the court determined that there was an unacceptable risk that the applicant would commit further offences, endanger others, or fail to comply with bail conditions. Consequently, the application for bail was refused. The court emphasised the importance of maintaining public safety and the need to deter the applicant from further criminal activity.

Orders